Parents for Privacy v. Dall. Sch. Dist. No. 2

• Citation: 326 F.Supp.3d 1075
• Decision Date: 24 July 2018
• Docket Number: No. 3:17-cv-01813-HZ,3:17-cv-01813-HZ
• Parties: PARENTS FOR PRIVACY; Kris Golly and Jon Golly, individually and as guardians ad litem for A.G.; Lindsay Golly; Nicole Lillie; Melissa Gregory, individually and as guardian ad litem for T.F.; and Parents' Rights in Education, an Oregon nonprofit corporation, Plaintiffs, v. DALLAS SCHOOL DISTRICT NO. 2 ; Oregon Department of Education; Governor Kate Brown, in her official capacity as the Superintendent of Public Instruction; and United States Department of Education; Betsy Devos, in her official capacity as United States Secretary of Education, as successor to John B. King, Jr.; United States Department of Justice; Jeff Sessions, in his official capacity as United States Attorney General, as successor to Loretta F. Lynch, Defendants.
• Court: U.S. District Court — District of Oregon

326 F.Supp.3d 1075

PARENTS FOR PRIVACY; Kris Golly and Jon Golly, individually and as guardians ad litem for A.G.; Lindsay Golly; Nicole Lillie; Melissa Gregory, individually and as guardian ad litem for T.F.; and Parents' Rights in Education, an Oregon nonprofit corporation, Plaintiffs,

v.DALLAS SCHOOL DISTRICT NO. 2 ; Oregon Department of Education; Governor Kate Brown, in her official capacity as the Superintendent of Public Instruction; and United States Department of Education; Betsy Devos, in her official capacity as United States Secretary of Education, as successor to John B. King, Jr.; United States Department of Justice; Jeff Sessions, in his official capacity as United States Attorney General, as successor to Loretta F. Lynch, Defendants.

No. 3:17-cv-01813-HZ

United States District Court, D. Oregon.

Signed July 24, 2018

Herbert G. Grey, 4800 SW Griffith Drive, Suite 320, Beaverton, OR 97005, Ryan J. Adams, Caleb S. Leonard, 181 N. Grant Street, Suite 212, Canby, OR 97013, Attorneys for Plaintiffs

Peter R. Mersereau, Beth F. Plass, Mersereau Shannon LLP, 111 SW Columbia Street, Suite 1100, Portland, OR 97201, Attorneys for Defendant Dallas School District No. 2

Chad A. Readler, Billy J. Williams, Carlotta P. Wells, James O. Bickford, United States Department of Justice, 20 Massachusetts Ave., NW, Washington, DC 20530, Attorneys for Defendants United States Department of Education, Betsy Devos, United States Department of Justice, and Jeff Sessions

Darin M. Sands, Lane Powell PC, 601 SW Second Avenue, Suite 2100, Portland, OR 97204, Mathew W. dos Santos, Kelly Simon, ACLU Foundation of Oregon, P.O. Box 40585, Portland, OR 97240, Gabriel Z. Arkles, Shayna A. Medley-Warsoff, ACLU Foundation, 125 Broad Street, 18th Floor, New York, NY 10004, Attorneys for Defendant-Intervenor Basic Rights Oregon

Ellen F. Rosenblum, Sarah Weston, Patricia Rincon, Carla A. Scott, Oregon Department of Justice, 100 SW Market Street, Portland, OR 97201, Attorneys for Amici Governor Kate Brown and Oregon Department of Education

OPINION & ORDER

HERNÁNDEZ, District Judge:

The Court must determine whether Oregon public schools may allow transgender students to use restrooms, locker rooms, and showers that match their gender identity rather than their biological sex assigned at birth. Dallas High School, located in Dallas, Oregon, and under the control of Defendant Dallas School District No. 2 ("District"), adopted and implemented the Student Safety Plan ("Plan") together with underlying policies allowing transgender students to use restrooms, locker rooms, and showers that match their gender identity. Plaintiff Parents for Privacy is composed of current and former Dallas High School students ("Student Plaintiffs") and their parents ("Parent Plaintiffs"). Plaintiff Lindsay Golly formerly attended Dallas High School during the 2015–2016 school year while the Plan was in place. Compl. ¶ 16, ECF 1. Plaintiffs Kris Golly and Jon Golly are her parents as well as the parents of their son A.G., an eighth-grade student who will soon attend Dallas High School. Compl. ¶ 16. Plaintiff Melissa Gregory is a parent of T.F., a student at Dallas high school. Id. at ¶ 17.¹

Plaintiffs challenge the legality of the plan, seek to enjoin District from enforcing it, and request that the Court order District to require students to only use the restrooms, locker rooms, and showers that match their biological sex. Additionally, Plaintiffs seek to enjoin the U.S. Department of Education ("USDOE"), U.S. Department of Justice ("USDOJ"), and their respective secretaries (collectively "Federal Defendants") from taking any action based on USDOE's alleged rule redefining the word "sex" as used in Title IX to include gender identity. District and Federal Defendants have separately filed motions to dismiss Plaintiffs' claims.

Moreover, Basic Rights Oregon ("BRO"), a non-profit organization dedicated to protecting the rights of Oregon's LGBTQ community, filed a motion to intervene as a defendant in this case. See Mot. to Intervene, ECF. 24. The Court granted BRO's motion to intervene and BRO filed its own motion to dismiss. See BRO's Mot. to Dismiss, ECF 30.

Lastly, the Oregon Department of Education ("ORDOE") and Governor Kate Brown (collectively "State") were originally named parties in this lawsuit. Upon the parties' stipulation, Plaintiffs' claims against those defendants were dismissed. See Stip. Notice of Dismissal, ECF 11. State, however, moved to rejoin this litigation as amicus curiae. See Mot. for Leave to Appear as Amicus Curiae, ECF 50. The Court granted that motion, and State filed its amicus brief in support of District's Motion to Dismiss. See Amicus Br., ECF 50-1. In sum, there are three fully-briefed motions to dismiss before the Court.² For the reasons discussed below, the motions are GRANTED and this case is DISMISSED.

Plaintiffs bring the following eight claims for relief:

First Claim: (against Federal Defendants) Violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq. Compl. ¶¶ 136–185.

Second Claim: (against District and Federal Defendants) Violation of the Fundamental Right to Privacy. Id. at ¶¶ 186–206.

Third Claim: (against District and Federal Defendants) Violation of the Parents' Fundamental Right to Direct the Education and Upbringing of Their Children. Id. at ¶¶ 207–220.

Fourth Claim: (against District) Violation of Title IX, 20 U.S.C. § 1681 et seq.Id. at ¶¶ 221–247.

Fifth Claim: (against Federal Defendants): Violation of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq.Id. at ¶¶ 248–255.

Sixth Claim: (against District and Federal Defendants): Violation of the First Amendment's Guarantee of Free Exercise of Religion. Id. at ¶¶ 256–264.

Seventh Claim: (against District) Public Accommodation Discrimination, Or. Rev. Stat. ("O.R.S.") §§ 659A.400, 659A.885. Id. at ¶¶ 265–271.

Eighth Claim: (against District) Discrimination in Education, O.R.S. 659.850. Id. at ¶¶ 272–277.

Plaintiffs and District conferred and consent to the dismissal of some of Plaintiffs' claims. First, they agree that Plaintiff Lindsay Golly should be dismissed because she does not have standing. Second, the parties agree that Plaintiff Nicole Lillie should be dismissed; while her name is in the case caption, she is not included in any of the Complaint's allegations. Third, Plaintiffs consent to the dismissal of their request for compensatory damages as to Plaintiffs A.G. and T.F. Furthermore, Plaintiffs concede that their third claim for relief—violation of the right to direct the education and upbringing of one's children—should be dismissed to the extent that it is based on the District's alleged liability for the LaCreole Middle School special needs assessment. See Pl.'s Resp. to District's Mot. to Dismiss 2, ECF 41.

BACKGROUND³

I. Definitions

As a preliminary matter, the Court finds it necessary to explain its use of several relevant terms. In a recent decision, the Third Circuit aptly summarized the same set of terms the Court uses throughout this Opinion & Order. See Doe v. Boyertown Area Sch. Dist. , 893 F.3d 179, 183–84 (3d Cir. 2018). The Court adopts the following definitions from the Third Circuit:

"Sex" is defined as the "anatomical and physiological processes that lead to or denote male or female." Typically, sex is determined at birth based on the appearance of external genitalia.

"Gender" is a "broader societal construct" that encompasses how a "society defines what male or female is within a certain cultural context." A person's gender identity is their subjective, deep-core sense of self as being a particular gender.... "[C]isgender" refers to a person who identifies with the sex that person was determined to have at birth. The term "transgender" refers to a person whose gender identity does not align with the sex that person was determined to have at birth. A transgender boy is therefore a person who has a lasting, persistent male gender identity, though that person's sex was determined to be female at birth. A transgender girl is a person who has a lasting, persistent female gender identity though that person's sex was determined to be male at birth.

Id. (citations omitted).

II. Dallas School District and the Student Safety Plan

Dallas High School is located in Dallas, Oregon in Polk County. Compl. ¶ 19. Student A was a twelfth grade student at Dallas High School. Id. at ¶ 76. Student A was born and remains biologically female. Id. at ¶ 77. Before September 2015, Student A used the girls' restrooms, locker rooms, and showers (collectively "facilities"). Id. at ¶ 77. In September 2015, Student A publicly identified as a boy and asked District to allow him⁴ to use the boys' facilities. Id. at ¶ 78–79.

In November 2015, District responded to Student A's request by implementing the Student Safety Plan entitled "Transgender Student Access to Locker Room." Compl. Ex. A, at 1. The Plan permits Student A to use Dallas High School's locker rooms, restrooms, and showers consistent with his gender identity. Compl. ¶ 75, Ex. A, at 1. The preamble to the Plan states:

All students have rights for attendance at public schools, and we have to follow the laws which protect those students['] rights. This safety plan has been created to support a transgender male expressing the right to access the boy's locker room at Dallas High School. Following are targeted areas of concern and the procedures or actions aimed to support all students in this transition.

Compl. Ex. A, at 1. At that time, Student A had not expressed which bathroom he felt comfortable using. Id. at ¶ 79. Accordingly, the Plan states that Student A "can use any of the bathrooms in the building to which he identifies sexually." Compl. Ex. A, at 2.

Furthermore, the Plan, as referred to by the parties, also encompasses several previously established District policies. Compl. Exs. B–G. District's nondiscrimination policy provides that District "prohibits discrimination and harassment on...