On August 7, 2023, in Doe v. Bethel Local School District Board of Education, et al. , the United States District Court for the Southern District of Ohio dismissed claims brought by cisgender students and parents regarding a transgender student’s use of the bathroom that conformed with her gender identity. The plaintiffs alleged five claims under federal law: (1) a claim seeking a declaratory judgment that Title IX does not require the School District to implement its new bathroom policy; (2) an alleged violation of the parent plaintiffs’ Fourteenth Amendment right to direct the care, custody, and control of their children; (3) an alleged violation of the Fourteenth Amendment’s Equal Protection Clause; (4) an alleged violation of all plaintiffs’ First Amendment Free Exercise rights; and (5) an alleged violation of the Protection of Pupil Rights Amendment (“PPRA”). For the reasons discussed below, all of these claims were dismissed, which effectively ends the lawsuit. The plaintiffs also asserted a state law claim alleging a violation of the Open Meetings Act. The Court dismissed this claim without prejudice, noting that the plaintiffs could bring the claim in state court if they wished to do so. The plaintiffs have the right to appeal this decision.
For those who would like more factual background, and the legal underpinnings for the Court’s decision, read on. For those who are only interested in the practical implications for school districts, skip to the end.
Factual Background
The plaintiffs in the case are students who attend Bethel Middle School, parents of these students and parents of other Bethel Middle School students who are not named as plaintiffs. The case was filed against the Board of Education, its members, and the district’s superintendent. The Court allowed Anne Roe, a transgender middle school student, to intervene in the lawsuit as it is her access to the bathroom that is at issue in the case.
Anne began attending Bethel Middle School in January 2020. At that time, Anne’s parents informed the middle school principal that Anne is transgender. Anne, her parents, and the principal agreed that she would use the single occupancy restroom in the nurse’s office or the faculty restrooms located in the middle school and high school offices. However, Anne found that using the single use bathroom was difficult because it was frequently occupied when she needed it and she felt ostracized, humiliated, and targeted by other students who taunted her for using the separate bathroom. She stated that this caused her to hold her urine during the day “to avoid using the restroom at school.” Anne’s parents expressed these concerns and, after a meeting between Anne, her parents, the middle school principal, and superintendent, the superintendent communicated that Anne would be allowed to use the girls’ communal restroom in January 2022 (upon return from winter break). On November 22, 2022, the lawsuit was filed.
Title IX Claim
Plaintiffs’ sought an opinion from the Court under Title IX that the district’s interpretation of Title IX, which allowed Anne to use the girls’ restroom, was incorrect. The student plaintiffs alleged emotional harm (including fear of using the restroom at school) based on their religious aversion to encountering a transgender student in the bathroom. The parent plaintiffs alleged an injury to their right to raise their children in accordance with their religious beliefs. The Court held that these alleged injuries did not relate to Title IX, which prohibits discrimination on the basis of sex. The Court further held that plaintiffs’ did not suffer an “injury in fact” under Title IX. The Court stated that, because there was no controversy under Title IX, plaintiffs were in essence seeking an advisory opinion which courts cannot provide.
Fourteenth Amendment Claims
The plaintiff parents alleged that the district’s bathroom policy infringes on their fundamental right to make decisions concerning the “care, custody, and control of their children.” The Court found that while this right extends to the school setting, it is not “unqualified.” The Court noted that parents have the “fundamental right to decide whether to send their child to a public school.” The Court held that this right does not extend to decisions related to school operations. The Court noted, “Public school policies that direct school operations, like the Board’s policy here—prescribing the use of student bathrooms—are for the school to decide.” The Court went on to note that the plaintiffs did “not have a substantive due process right to dictate to the School District which bathroom a transgender student must use.” Similarly, the parents’ fundamental right does not extend to allowing parents to “strike down a state school’s choices about curriculum.” Likewise, the Court held that a school district’s refusal to answer concerned parents’ potential questions does not impair the parents’ fundamental right. As such, the Court dismissed the claims under the Fourteenth Amendment.
The Equal Protection Clause
The student and parent plaintiffs asserted that, by allowing the transgender student to use the bathroom that was consistent with her gender identity, the district is giving transgender students and parents a benefit that they do not receive. The student plaintiffs asserted that they avoid the bathrooms and suffer anxiety because the transgender student uses the communal restroom. The plaintiff parents alleged that they feel “substantial distress” due to their concerns for their children and “interference with their faith which forbids interacting with a member of the opposite sex in a school bathroom.” The Court noted that while the plaintiffs felt stigmatized, this was insufficient to constitute an injury in fact. Moreover, the Court stated that “[n]othing about the School District’s decision to allow Anne to use the girls’ bathroom denies the Student Plaintiffs access to the school communal bathrooms, or any other public benefit afforded to every student under the School District’s anti-discrimination policy.” As such, the plaintiffs had not been subjected to discriminatory treatment. The Court noted that here, the district was providing the same benefit – access to communal bathrooms – to all students. As there was no different treatment or a concrete injury, plaintiffs lacked standing and their equal protection claim was dismissed.
The Free Exercise Clause
Parent and student plaintiffs who are both Muslim and Christian, alleged that the district’s actions burdened their free exercise of religion. Specifically, they alleged that they have sincerely held religious beliefs that prevent them from sharing bathrooms with the opposite gender and that their free exercise of these beliefs was burdened by the policy allowing a transgender student to use a communal bathroom. The Court did not find this argument meritorious as it held that the district’s policy was “neutral and generally applicable.” Specifically, the Court held that the district’s policy, which was to allow students to use the bathroom that corresponded with their gender identity was: (1) facially neutral because it makes no reference to religion or religious conduct; and (2) generally applicable because it restricts religious and nonreligious conduct equally – every student gets to use the bathroom that corresponds with their gender identity. Moreover, the Court found no “hint of any plausible fact” that the district was using the policy to suppress religious beliefs, nor did the policy impose conditions or restrictions on religious conduct.
In analyzing the policy, and the district’s decision to implement it, the Court found that there was a rational basis for the district’s actions. The Court stated, “The School District . . .adopted its policy to not run afoul of federal law, including published decisions from the Sixth Circuit and this Court, which found that a school violated Title IX and the Equal Protection Clause when it prevented a transgender student from using a bathroom that aligned with the student’s gender identity.” The Court went on to note that the district’s “interest in following the law, and eliminating discrimination on the basis of sex, is furthered by its policy.” Thus, the Court found that plaintiffs had failed to state a claim under the Free Exercise Clause.
The Protection of Pupil Rights Amendment
The claims raised under the PPRA do not implicate bathroom access; rather, the plaintiffs’ claim that the district’s “nonacademic requirements, including requiring reading books promoting transgender ideology,” run afoul of the PPRA. In analyzing this claim, the Court concluded that individuals do not have a private right of action under the PPRA. Moreover, the Court concluded that even if a private right of action existed, the plaintiffs’ claims that students are required to “complete assignments promoting LGBTQ+ beliefs” are outside the scope of the PPRA which only prevents students from “submit[ing] a survey, analysis or evaluation that reveals information concerning . . . mental or psychological problems of the student. . . [or] sex behavior or attitudes.” The Court found no correlation between a reading assignment regarding LGBTQ+ beliefs would run afoul of the PPRA.
Practical Implications
This case, along with the case law cited by the Court, appears to reaffirm the position of courts in Ohio that transgender students can be provided with access to bathrooms that conform with the student’s gender identity. In providing this access, school districts should act in a manner that impacts all students equally. For example, if transgender students are permitted to use a restroom that conforms with their gender identity or an individual restroom, all students should be given these same options. Further, any policy adopted by school districts should not reference, directly or by implication, religion or religious conduct.
Notably, the language in the Court’s opinion also affirms the rights of school districts to make operational decisions as well as decisions related to curriculum. While the Court recognized a parent’s fundamental right to determine where their child attends school, the Court opined that “inventing a constitutional right to strike down a state school’s choices about curriculum and school operations would impermissibly extend that right….” This decision, and the legal authority cited by the Court, should provide school districts with some level of assurance that not every unpopular decision will lead to liability. As the Court aptly noted: “Not every contentious debate, concerning matters of public importance, presents a cognizable federal lawsuit.”
While the Court has reached a decision, this case will almost certainly be appealed to the United States Court of Appeals for the Sixth Circuit. We will continue to monitor this litigation and provide updates.
The Court’s decision can be found by clicking:
Doe v. Bethel Local School District Board of Education, et al.
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