Oregon Judge Rules in Favor of Transgender Students in Bathroom Case

A federal judge in Oregon issued a ruling this week in favor of transgender students, saying that forcing them to use restrooms that correspond with the gender they were assigned at birth would violate civil rights law.

In a 56-page opinion released Tuesday, Judge Marco A. Hernández of U.S. District Court in Portland said that transgender students should be allowed to use bathrooms that match the gender they identify with. The ruling upheld the policy of a school district in Dallas, Oregon, that allowed a male transgender student to use the boys’ restrooms, showers and locker rooms.

The judge dismissed claims by some students and parents saying that other male students experienced “embarrassment, humiliation, anxiety, intimidation, fear, apprehension and stress produced by using the restroom with students of the opposite sex.”

Hernández wrote in his opinion, “Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources.”

An evolving battle over transgender rights is taking place across the country, and it has been waged most prominently over access to school bathrooms.

In 2016, North Carolina legislators ignited a nationwide controversy when they passed a law requiring people in publicly owned buildings to use the restroom that corresponded with the gender they were assigned at birth.

The law, which was eventually repealed in March 2017, brought the state heavy criticism from major corporations; the NCAA said it would stop hosting championship events in the state; and the Justice Department, under President Barack Obama, sued the state, saying the North Carolina law was prohibited by federal civil rights laws.

President Donald Trump has reversed course from many of the Obama administration’s positions on transgender rights, last year moving to curtail protections for such students and pointing to the role of states and school districts in setting policy.

Transgender rights advocates were dealt a further blow when, prompted by the Trump administration’s reversal, the Supreme Court declined to decide a case that could have potentially solidified for the first time transgender protections nationwide, similar to the court’s support of same-sex marriage in 2015.

Since then, both advocates and opponents of transgender rights have turned to lower courts.

The Oregon case was one of a number of recent legal efforts to overturn school policies guaranteeing transgender students the use of facilities matching their gender identity, though courts have largely sided with transgender students, said Harper Jean Tobin, policy director at the National Center for Transgender Equality.

In addition to the judge’s ruling in Oregon this week, a federal judge in Illinois ruled in December against a group of parents and other community members who were seeking to bar a school district from allowing transgender girls and boys from sharing bathrooms and locker rooms of their choice with other girls and boys.

Tobin also pointed to an appellate court ruling in May that upheld a Pennsylvania school district’s policy allowing transgender students to use bathrooms that match their gender identity.

“Collectively, what these lines of cases have done is send a strong message to schools that transgender students are part of every school community,” Tobin said.

She added that it’s unclear exactly how many schools allow transgender students to use the bathrooms for genders they identify with, because policies change every day.

In 2015, Tobin said, a national survey conducted by GLSEN, a nonprofit organization that focuses on creating a safer school climate for LGBT students, found that 40 percent of students surveyed were “able to use appropriate facilities in their schools.”

She said that today, her group estimates that roughly half of school districts have policies that allow students to do so, and that “things are getting better.”

The Oregon case began in 2015, when Elliot Yoder, a student who had been using female restrooms and locker rooms, publicly identified as a boy and asked to use the boys’ facilities. The school put in place a policy that year allowing him to do so.

A group of parents and other members of the community, after seeking to undo the policy at local school board meetings, sued in 2017, according to the judge’s opinion. Lawyers representing them did not respond to requests for comment Thursday, and Elliot could not be reached for comment.

Gabriel Arkles, a lawyer with the American Civil Liberties Union who argued the Oregon case, said the lawsuit was part of a coordinated national effort to challenge policies allowing transgender students to use bathrooms for genders they identify with.

“It’s definitely a part of a strategy,” he said.

Gary McCaleb, senior counsel with the Alliance Defending Freedom, which has argued in cases in favor of restricting bathroom use, said Thursday that the judge’s ruling denied students’ privacy.

“The Oregon ruling treats sex as if it were determined by a person’s perception of their masculinity or femininity, rather than the objective fact that a person is either male or female,” he said.