Parents for Privacy v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PARENTS FOR PRIVACY; JON GOLLY; No.18-35708
KRIS GOLLY, individually and as
guardians ad litem for A.G.; NICOLE D.C. No.
LILLIE; MELISSA GREGORY, CV 17-1813 HZ
individually and as guardian ad litem
for T.F.; PARENTS RIGHTS IN
EDUCATION, an Oregon nonprofit OPINION
corporation; LINDSAY GOLLY,
Plaintiffs-Appellants,
v.
WILLIAM P. BARR, Attorney
General; BETSY DEVOS; U.S.
DEPARTMENT OF EDUCATION;
UNITED STATES DEPARTMENT OF
JUSTICE; DALLAS SCHOOL DISTRICT
NO. 2,
Defendants-Appellees,
BASIC RIGHTS OREGON,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernández, District Judge, Presiding
2 PARENTS FOR PRIVACY V. BARR
Argued and Submitted July 11, 2019
Portland, Oregon
Filed February 12, 2020
Before: A. Wallace Tashima, Susan P. Graber,
and John B. Owens, Circuit Judges.
Opinion by Judge Tashima
SUMMARY*
Civil Rights
The panel affirmed the district court’s dismissal of an
action alleging that an Oregon public school district violated
Title IX, as well as the constitutional rights of students and of
parents, when it allowed transgender students to use school
bathrooms, locker rooms, and showers that match their
gender identity rather than the biological sex they were
assigned at birth.
The Dallas School District No. 2 implemented a Student
Safety Plan after a student who had been born and who
remained biologically female publicly identified as a boy,
and asked school officials to allow him to use the boys’
bathroom and locker room. The Plan acknowledged the
student as a “transgender male” and permitted him to use the
boys’ locker room and bathroom facilities with his peers.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PARENTS FOR PRIVACY V. BARR 3
The Plan provided that the student could use any of the
bathrooms in the building to which he identified sexually.
The Student Safety Plan also provided, among other things,
that all staff would receive training and instruction regarding
Title IX, and that teachers would teach about anti-bullying
and harassment.
The panel held that there is no Fourteenth Amendment
fundamental privacy right to avoid all risk of intimate
exposure to or by a transgender person who was assigned the
opposite biological sex at birth. Thus, the panel held that
plaintiffs failed to show that the contours of the privacy right
protected by the Fourteenth Amendment were so broad as to
protect against the School District’s implementation of the
Student Safety Plan. This conclusion was supported by the
fact that the Student Safety Plan provided alternative options
and privacy protections to those who did not want to share
facilities with a transgender student, even though those
alternative options admittedly appeared inferior and less
convenient.
The panel held that the Student Safety Plan sought to
avoid discrimination and ensure the safety and well-being of
transgender students; it did not violate Title IX. Thus, the
panel held that a policy that treats all students equally does
not discriminate based on sex in violation of Title IX, and that
the normal use of privacy facilities does not constitute
actionable sexual harassment under Title IX just because a
person is transgender. The panel stated that just because Title
IX authorizes sex-segregated facilities does not mean that
they are required, let alone that they must be segregated based
only on biological sex and cannot accommodate gender
identity. Nowhere does the statute explicitly state, or even
suggest, that schools may not allow transgender students to
4 PARENTS FOR PRIVACY V. BARR
use the facilities that are most consistent with their gender
identity.
The panel held that the Fourteenth Amendment does not
provide a fundamental parental right to determine the
bathroom policies of the public schools to which parents may
send their children, either independent of the parental right to
direct the upbringing and education of their children or
encompassed by it. The panel stated that given that Supreme
Court and Ninth Circuit case law not only have not
recognized the specific rights asserted by plaintiffs, but
further foreclosed recognizing such rights as being
encompassed by the fundamental parental rights protected by
the Fourteenth Amendment’s Due Process Clause,
amendment of this claim would be futile.
The panel held that the Student Safety Plan was rationally
related to a legitimate state purpose and did not infringe
plaintiffs’ First Amendment free exercise rights because it did
not target religious conduct. The panel held that because the
Student Safety Plan qualified as neutral and generally
applicable, it was not subject to strict scrutiny. The panel
rejected plaintiffs’ argument that strict scrutiny was required
because plaintiffs alleged multiple constitutional claims
concerning fundamental rights.
The panel concluded that the district court did not err by
failing to allow plaintiffs leave to replead because the
problem with plaintiffs’ complaint was not the sufficiency of
their factual allegations, but rather that plaintiffs’ legal
theories failed. Amending the complaint would not change,
for example, the extent of the rights that are protected by the
Fourteenth Amendment’s Due Process Clause. As a result,
PARENTS FOR PRIVACY V. BARR 5
the panel affirmed the district court’s denial of leave to
amend.
COUNSEL
J. Ryan Adams (argued), Canby, Oregon; Herbert G. Grey,
Beaverton, Oregon; for Plaintiffs-Appellants.
Dennis Fan (argued) and Marleigh D. Dover, Appellate Staff;
Billy J. Williams, United States Attorney; Joseph H. Hunt,
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C., for Defendants-
Appellees William P. Barr, Betsy DeVos; U.S. Department of
Education, and United States Department of Justice.
Blake H. Fry (argued) and Peter R. Mersereau, Mersereau
Shannon LLP, Portland, Oregon, for Defendants-Appellees
Dallas School District No. 2.
Gabriel Arkles (argued) and Shayna Medley-Warsoff,
American Civil Liberties Union Foundation, New York, New
York; Peter D. Hawkes and Darin M. Sands, Lane Powell PC,
Portland, Oregon; Matthew W. dos Santos and Kelly Simon,
ACLU Foundation of Oregon; for Intervenor-Defendant-
Appellee.
Jesse Ryan Loffler, Cozen O’Connor, Pittsburgh,
Pennsylvania, for Amici Curiae Transgender Students and
Allies.
6 PARENTS FOR PRIVACY V. BARR
Anthony Todaro, Jeffrey DeGroot, and Rachael Kessler, DLA
Piper LLP (US), Seattle, Washington; Fatima Goss Graves,
Emily Martin, Neena Chaudhry, and Sunu P. Chandy,
National Women’s Law Center, Washington, D.C.; for
Amicus Curiae National Women’s Law Center.
Wesley R. Powell, Mary Eaton, and Patricia O. Haynes,
Willkie Farr & Gallagher LLP, New York, New York; Arthur
L. Coleman, Education Counsel LLC, Washington, D.C.; for
Amici Curiae National PTA, GLSEN, American School
Counselor Association, and National Association of School
Psychologists.
Devi M. Rao, Jenner & Block LLP, Washington, D.C.;
Andrew G. Sullivan, Jenner & Block LLP, Los Angeles,
California; for Amici Curiae American Academy of
Pediatrics, American Medical Association, American Public
Health Association, and 13 Other Medical, Mental Health,
and Other Health Care Organizations.
John C. Dwyer, Maureen P. Alger, Sarah R. Binning, and
Emily B. Harrington, Cooley LLP, Palo Alto, California;
Kyle Wong, Cooley LLP, San Francisco, California; Shannon
Minter, Amy Whelan, and Asaf Orr, National Center for
Lesbian Rights, San Francisco, California; Shawn
Meerkamper, Transgender Law Center, Oakland, California;
for Amici Curiae PFLAG Inc., Trans Youth Equality
Foundation, Gender Spectrum, Gender Diversity, and
Transactive Gender Project.
Alice O’Brien, Eric A. Harrington, and Gypsy M. Moore,
National Education Association, Washington, D.C., for
Amicus Curiae National Education Association.
PARENTS FOR PRIVACY V. BARR 7
Ellen F. Rosenblum, Attorney General; Benjamin Gutman,
Solicitor General; Jona J. Maukonen, Assistant Attorney-In-
Charge; Office of the Attorney General, Salem, Oregon; for
Amicus Curiae State of Oregon.
Cynthia Cook Robertson, Pillsbury Winthrop Shaw Pittman
LLP, Washington, D.C.; Tara L. Borelli, Lambda Legal
Defense and Education Fund Inc., Atlanta, Georgia; Richard
M. Segal and Nathaniel R. Smith, Pillsbury Winthrop Shaw
Pittman LLP, San Diego, California; Robert C.K. Boyd and
William C. Miller, Pillsbury Winthrop Shaw Pittman LLP,
Washington, D.C.; Peter C. Renn, Lambda Legal Defense and
Education Fund Inc., Los Angeles, California; for Amici
Curiae School Administrators from Thirty States and the
District of Columbia.
George G. Gordon, Ryan M. Moore, and Thomas J. Miller,
Dechert LLP, Philadelphia, Pennsylvania; Steven M.
Freeman, Kimberley Plotnik, David Barkey, and Melissa
Garlick, Anti-Defamation League, New York, New York; for
Amici Curiae Anti-Defamation League; Americans United
for Separation of Church and State; Bend the Arc Jewish
Action; Central Pacific Conference of the United Church of
Christ; Corvallis-area Lavender Women; Greater Seattle
Business Association; Hadassah, The Women’s Zionist
Organization of America, Inc.; Human Rights Campaign;
Jewish Council for Public Affairs; Jewish Federation of
Greater Portland; Keshet: For LGBTQ Equality in Jewish
Life; National Center for Transgender Equality; National
Center for Youth Law; National Council of Jewish Women;
National Queer Asian Pacific Islander Alliance; OCA - Asian
Pacific American Advocates; People For the American Way
Foundation; Public Counsel; South Asian Americans Leading
8 PARENTS FOR PRIVACY V. BARR
Together; Union for Reform Judaism; and Central
Conference of American Rabbis.
OPINION
TASHIMA, Circuit Judge:
This case concerns whether an Oregon public school
district may allow transgender students to use school
bathrooms, locker rooms, and showers that match their
gender identity rather than the biological sex they were
assigned at birth. Plaintiffs oppose the school district’s
policy, asserting that it violates Title IX, as well as the
constitutional rights—including the right to privacy, the
parental right to direct the education and upbringing of one’s
children, and the right to freely exercise one’s religion—of
students and of parents of students in the school district.
Defendants and many amici highlight the importance of the
policy for creating a safe, non-discriminatory school
environment for transgender students that avoids the
detrimental physical and mental health effects that have been
shown to result from transgender students’ exclusion from
privacy facilities that match their gender identities.
It is clear that this case touches on deeply personal issues
about which many have strong feelings and beliefs.
Moreover, adolescence and the bodily and mental changes it
brings can be difficult for students, making bodily exposure
to other students in locker rooms a potential source of
anxiety—and this is particularly true for transgender students
who experience gender dysphoria. School districts face the
difficult task of navigating varying student (and parent)
beliefs and interests in order to foster a safe and productive
PARENTS FOR PRIVACY V. BARR 9
learning environment, free from discrimination, that
accommodates the needs of all students. At the outset, we
note that it is not our role to pass judgment on the school
district’s policy or on how the school district can best fulfill
its duty as a public educational institution. We are asked only
to resolve whether the school district’s policy violates Title
IX or Plaintiffs’ constitutional rights.
In a thorough and well-reasoned opinion, the district court
dismissed the federal causes of action against the school
district for failure to state a claim upon which relief can be
granted.1 Parents for Privacy v. Dallas Sch. Dist. No. 2,
326 F. Supp. 3d 1075 (D. Or. 2018). We agree with the
district court and hold that there is no Fourteenth Amendment
fundamental privacy right to avoid all risk of intimate
exposure to or by a transgender person who was assigned the
opposite biological sex at birth. We also hold that a policy
that treats all students equally does not discriminate based on
sex in violation of Title IX, and that the normal use of privacy
facilities does not constitute actionable sexual harassment
under Title IX just because a person is transgender. We hold
further that the Fourteenth Amendment does not provide a
fundamental parental right to determine the bathroom policies
of the public schools to which parents may send their
children, either independent of the parental right to direct the
upbringing and education of their children or encompassed by
it. Finally, we hold that the school district’s policy is
rationally related to a legitimate state purpose, and does not
infringe Plaintiffs’ First Amendment free exercise rights
because it does not target religious conduct. Accordingly, we
1
The district court also dismissed Plaintiffs’ claims under Oregon
state law, but Plaintiffs do not challenge that portion of the district court’s
order on appeal.
10 PARENTS FOR PRIVACY V. BARR
affirm the district court’s dismissal with prejudice of the
action.
I.
In September 2015, a student at Dallas High School who
had been born and who remained biologically female publicly
identified as a boy, and he asked school officials to allow him
to use the boys’ bathroom and locker room.2 Defendant-
Appellee Dallas School District No. 2 (the “District”)
responded by creating and implementing a “Student Safety
Plan” for the transgender boy (“Student A”) and any other
transgender student who might make a similar request in the
future, in order to ensure that transgender persons like
Student A could safely participate in school activities.
The Plan acknowledged Student A as a “transgender
male” and permitted him to use the boys’ locker room and
bathroom facilities with his peers at Dallas High School.3
The Plan also provided that, while Student A had not
indicated “which bathroom he feels comfortable using,”
Student A could “use any of the bathrooms in the building to
2
For the purposes of this appeal, which is taken from the dismissal of
Plaintiffs’ complaint, we draw the facts from the complaint’s well-pleaded
factual allegations and from the exhibits attached to the complaint. See
Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899–900
(9th Cir. 2007) (“When ruling on a motion to dismiss, we may ‘generally
consider only allegations contained in the pleadings, exhibits attached to
the complaint, and matters properly subject to judicial notice.’” (quoting
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam))).
3
The District also planned to spend between $200,000 and $500,000
upgrading the high school’s bathrooms and locker rooms to better
accommodate their use by transgender students.
PARENTS FOR PRIVACY V. BARR 11
which he identifies sexually.” In addition, to ensure Student
A’s safety, the Student Safety Plan provided that all staff
would receive training and instruction regarding Title IX, that
teachers would teach about anti-bullying and harassment, that
the Physical Education (“PE”) teacher would be first to enter
and last to leave the locker room, and that Student A’s locker
would be in direct line of sight of the PE teacher in the
coach’s office. The Student Safety Plan also listed several
“Safe Adults” with whom Student A could share any
concerns.
Student A began using the boys’ locker room and
changing clothes “while male students were present.” This
caused several cisgender boys “embarrassment, humiliation,
anxiety, intimidation, fear, apprehension, and stress,” because
they had to change clothes for their PE class and attend to
their needs while someone who had been assigned the
opposite sex at birth was present.4 Although privacy stalls
were available in the bathrooms, these were insufficient to
alleviate the cisgender boys’ fear of exposing themselves to
Student A, because the stalls had gaps through which
“partially unclothed bodies” could “inadvertently” be seen.
And an available single-user bathroom was often
inconvenient or was considered inferior because it lacked a
shower. As a consequence of their fear of exposure to
Student A, some cisgender boys began using the restroom as
little as possible while at school, and others risked tardiness
4
In the District, PE is a mandatory course for two or more years of
school, and students must change into and out of clothing appropriate for
PE class at the beginning and end of each PE class. Some of the cisgender
boys who had PE during the same class period as Student A changed into
their PE clothes as quickly as possible as a result of their anxiety that
Student A might see them in a partial state of undress.
12 PARENTS FOR PRIVACY V. BARR
by using distant restrooms during passing periods in order to
try to find a restroom in which Student A was unlikely to be
present.
When parents and other students in the Dallas community
became aware of the Student Safety Plan, many opposed it
publicly at successive school board meetings, in an effort to
dissuade the District from implementing the policy. Some
parents in the District are concerned and anxious about the
prospect of their children using locker rooms or bathrooms
together with a student who was assigned the opposite
biological sex at birth. The Student Safety Plan also
interferes with some parents’ preferred moral and/or religious
teaching of their children concerning modesty and nudity. In
addition, several cisgender girls suffered from stress and
anxiety as a result of their fear that a transgender girl student
who remains biologically male would be allowed to use the
girls’ locker room and bathroom. Girls had the option of
changing in the nurse’s office, but it was on the other side of
the school.
Students who opposed the Student Safety Plan attempted
to circulate a petition opposing the policy, but the high school
principal confiscated the petitions and ordered students to
discontinue doing so or face disciplinary action. Despite the
objections raised by several parents and students, the District
continued to allow Student A to use the bathroom and locker
room that matched the gender with which he identified.
II.
In November 2017, Plaintiffs-Appellants Parents for
Privacy, Parents’ Rights in Education, and several individuals
PARENTS FOR PRIVACY V. BARR 13
(collectively, “Plaintiffs”)5 sued the District, the Oregon
Department of Education, the Governor of Oregon, and
various federal officials and agencies (collectively, the
“Federal Defendants”),6 arguing that the Student Safety Plan
violates the Constitution and numerous other laws. The
complaint alleges eight claims:
5
The individual plaintiffs are or were students (“Student Plaintiffs”)
or parents of students (“Parent Plaintiffs”) in the District. Specifically,
Plaintiff Lindsay Golly formerly attended Dallas High School during the
2015–2016 school year while the Plan was in place. Plaintiffs Kris Golly
and Jon Golly are her parents, as well as the parents of their son A.G.,
who at the time of filing was an eighth-grade student who would soon
attend Dallas High School. Plaintiff Melissa Gregory is a parent of T.F.,
who at the time of filing was a student at Dallas High School.
Plaintiff Parents for Privacy is an unincorporated association whose
members included, at the time of filing, current and former students and
parents of current and former students in the District, as well as “other
concerned members of the District community.” Plaintiff Parents’ Rights
in Education is a nonprofit “whose mission is to protect and advocate for
parents’ rights to guide the education of their children.”
6
The Federal Defendants are the U.S. Department of Justice, U.S.
Department of Education, Attorney General, and Secretary of Education.
These defendants were involved at various times in the issuance and
enforcement of a number of guidance documents that initially promoted
accommodation of transgender students in public schools, including on
Title IX grounds. Subsequently, some of those guidance documents were
withdrawn, and others were later superseded by contrary guidance
documents. Plaintiffs asserted that, notwithstanding the withdrawal of the
relevant guidance documents, the Federal Defendants, in part, caused the
District to adopt the Student Safety Plan, because the guidance “has not
been formally repealed, and it has continuing legal force and effect [that
is] binding” upon the Dallas School District. Thus, the complaint seeks
to enjoin the Federal Defendants from “taking any action” based on their
previous guidance.
14 PARENTS FOR PRIVACY V. BARR
(1) violation by the Federal Defendants of the
Administrative Procedure Act, 5 U.S.C.
§§ 551–559;
(2) violation by the District and the Federal
Defendants of the Fundamental Right to
Privacy under the Fourteenth Amendment
to the Constitution;
(3) violation by the District and the Federal
Defendants of Parents’ Fundamental Right
to Direct the Education and Upbringing of
Their Children under the Fourteenth
Amendment;
(4) violation by the District of Title IX,
20 U.S.C. §§ 1681–1688;
(5) violation by the Federal Defendants of the
Religious Freedom Restoration Act of
1993, 42 U.S.C. § 2000bb–2000bb–4;
(6) violation by the District and the Federal
Defendants of the First Amendment’s
Guarantee of Free Exercise of Religion;
(7) violation by the District, the Governor of
Oregon, and the Oregon Department of
Education of Oregon’s Public
Accommodation Discrimination law, Or.
Rev. Stat. § 659A.885; and
PARENTS FOR PRIVACY V. BARR 15
(8) violation by the District of Oregon’s
Discrimination in Education law, Or. Rev.
Stat. § 659.850.
Plaintiffs sought to enjoin Defendants from enforcing the
Student Safety Plan, and they sought a court order requiring
the District to mandate that students use only the bathrooms,
locker rooms, and showers that match their biological sex
assigned at birth.
Upon the parties’ stipulation, Plaintiffs’ claims against
Oregon Governor Kate Brown and the Oregon Department
of Education were voluntarily dismissed on Eleventh
Amendment grounds.7, 8
Thereafter the District, Basic Rights Oregon, and the
Federal Defendants each moved to dismiss Plaintiffs’
complaint. In a lengthy, detailed, and careful opinion, the
district court granted all three motions and dismissed the case
with prejudice. Parents for Privacy, 326 F. Supp. 3d at 1111.
The court dismissed the claims against the District and Basic
Rights Oregon on the merits under Federal Rule of Civil
Procedure 12(b)(6), concluding that Plaintiffs had failed to
state claims upon which relief could be granted because the
legal theories on which Plaintiffs’ claims were premised
7
Those two dismissed defendants later requested and were granted
leave to appear as amici.
8
Also, Basic Rights Oregon, a non-profit LGBTQ advocacy
organization that had been involved in the development and
implementation of the Student Safety Plan, moved to intervene as a
defendant, which the district court granted.
16 PARENTS FOR PRIVACY V. BARR
failed, and that amendment of the claims would therefore be
futile. Id. at 1092–1110.
Separately, the court addressed the Federal Defendants’
motion to dismiss Plaintiffs’ claims against the Federal
Defendants for lack of standing, and concluded that Plaintiffs
indeed lacked Article III standing to bring their claims against
the Federal Defendants. The court explained that Plaintiffs
had not established causation or redressability with respect
to the Federal Defendants, because the District had adopted
the Student Safety Plan “in response to Student A’s
accommodation requests, not [the] Federal Defendants’
actions,” and the District would “retain[] the discretion to
continue enforcing the Plan” notwithstanding any relief
against the Federal Defendants. Id. at 1087–92.
Plaintiffs appealed the district court’s dismissal order,
arguing that the district court erred by dismissing, for failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6), their Title IX and constitutional claims against the
District. Plaintiffs further contend that the district court
committed reversible error in failing to provide Plaintiffs an
opportunity to amend their complaint and instead dismissing
the case with prejudice.
III.
We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo the grant of a Rule 12(b)(6) motion to dismiss
for failure to state a claim upon which relief may be granted.
Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1203 (9th Cir.
2005), amended on denial of reh’g by 447 F.3d 1187 (9th Cir.
2006) (per curiam). Under Rule 12(b)(6), a complaint must
be dismissed when a plaintiff’s allegations fail to set forth a
PARENTS FOR PRIVACY V. BARR 17
set of facts that, if true, would entitle the complainant to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding
that a claim must be facially plausible in order to survive a
motion to dismiss). In assessing whether a plaintiff has stated
a claim, we accept as true all well-pleaded factual allegations,
and construe all factual inferences in the light most favorable
to the plaintiff. See Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, we are
not required to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678; Fayer v. Vaughn,
649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam).
Dismissal of a complaint without leave to amend is
improper unless it is clear, on de novo review, that the
complaint could not be saved by any amendment. See
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052
(9th Cir. 2003) (per curiam); Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000) (en banc). “A district court acts within
its discretion to deny leave to amend when amendment would
be futile . . . .” V.V.V. & Sons Edible Oils Ltd. v. Meenakshi
Overseas, LLC, 946 F.3d 542, 547 (9th Cir. 2019) (ellipsis in
original) (quoting Chappel v. Lab. Corp. of Am., 232 F.3d
719, 725 (9th Cir. 2000)).
IV.
On appeal, Plaintiffs challenge the district court’s
dismissal of their claims that the District violated: (1) the
Fourteenth Amendment right to privacy; (2) Title IX; (3) the
Fourteenth Amendment right to direct the education and
18 PARENTS FOR PRIVACY V. BARR
upbringing of one’s children; and (4) the First Amendment’s
Free Exercise Clause.9 We address each claim seriatim.
A.
First, Plaintiffs challenge the district court’s dismissal of
their claim for violation of a fundamental right to privacy
under the Fourteenth Amendment.
The Fourteenth Amendment provides that no state shall
“deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. The
Fourteenth Amendment’s Due Process Clause “specially
protects those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were
sacrificed.” Washington v. Glucksberg, 521 U.S. 702,
720–21 (1997) (internal quotation marks and citations
omitted). The Supreme Court has recognized that “one aspect
of the ‘liberty’ protected by the Due Process Clause of the
Fourteenth Amendment is ‘a right of personal privacy, or a
guarantee of certain areas or zones of privacy.’” Carey v.
9
In their opening brief, Plaintiffs do not challenge or discuss the
district court’s ruling that Plaintiffs lacked Article III standing to sue
Federal Defendants as a result of Plaintiffs’ failure to establish causation
and redressability. We therefore do not review the district court’s
dismissal of Plaintiffs’ claims against Federal Defendants. See
Mandelbrot v. J.T. Thorpe Settlement Trust (In re J.T. Thorpe, Inc.),
870 F.3d 1121, 1124 (9th Cir. 2017) (“[W]e will not ordinarily consider
matters on appeal that are not specifically and distinctly raised and argued
in appellant’s opening brief.” (quoting Int’l Union of Bricklayers & Allied
Craftsman Local Union No. 20 v. Martin Jasika, Inc., 752 F.2d 1401,
1404 (9th Cir. 1985))).
PARENTS FOR PRIVACY V. BARR 19
Population Servs. Int’l, 431 U.S. 678, 684 (1977) (quoting
Roe v. Wade, 410 U.S. 113, 152, (1973)). This right includes
“at least two constitutionally protected privacy interests: the
right to control the disclosure of sensitive information and the
right to ‘independence [in] making certain kinds of important
decisions.’” Fields, 427 F.3d at 1207 (quoting Whalen v.
Roe, 429 U.S. 589, 599–600 (1977); see also Marsh v. County
of San Diego, 680 F.3d 1148, 1153 (9th Cir. 2012).
Plaintiffs contend that the privacy protections afforded by
the Fourteenth Amendment’s Due Process Clause also
encompass a “fundamental right to bodily privacy” that
includes “a right to privacy of one’s fully or partially
unclothed body and the right to be free from State-compelled
risk of intimate exposure of oneself to the opposite sex.”
Further, they assert that “[f]reedom from the risk of
compelled intimate exposure to the opposite sex, especially
for minors, is a fundamental right deeply rooted in this
nation’s history and tradition and is also implicit in the
concept of ordered liberty.” Because the District’s Student
Safety Plan allegedly infringes these rights by “requir[ing]
Student Plaintiffs to risk being intimately exposed to those of
the opposite biological sex . . . without any compelling
justification,” Plaintiffs contend that the District violated their
fundamental Fourteenth Amendment rights.
The district court dismissed this claim on the ground that
the complaint did not allege infringement of any
constitutionally protected right. It concluded that the
Fourteenth Amendment does not provide high school students
with a constitutional privacy right not to share restrooms or
locker rooms with transgender students whose sex assigned
at birth is different than theirs. Parents for Privacy, 326 F.
Supp. 3d at 1099.
20 PARENTS FOR PRIVACY V. BARR
In reaching this conclusion, the district court examined
the authorities on which Plaintiffs relied, but rejected those
cases as inapposite because, unlike the scenario presented in
this case, those cases “involve[d] egregious state-compelled
intrusions into one’s personal privacy,” such as “government
officials”—often law enforcement or correctional
officers—“viewing or touching the naked bodies of persons
of the opposite sex against their will.” Id. For example, the
district court noted that York v. Story, 324 F.2d 450, 452 (9th
Cir. 1963), the Ninth Circuit case that Plaintiffs claim
provides the basis for their asserted right to bodily privacy,
“involved a male police officer taking unnecessary nude
photographs of a female victim in provocative positions and
circulating them to other officers.” Parents for Privacy,
326 F. Supp. 3d at 1097. Similarly, the Ninth Circuit in
Supelveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir. 1992),
determined that a male parole officer violated a female
parolee’s right to bodily privacy by entering her bathroom
stall over her objections and remaining in the stall while she
“finished urinating, cleaned herself, and dressed.” Parents for
Privacy, 326 F. Supp. 3d at 1097. And, the district court
noted, Byrd v. Maricopa County Sheriff’s Department,
629 F.3d 1135, 1137 (9th Cir. 2011), concerned a strip search
by a female cadet of a male detainee in the presence of
approximately three dozen cadets and detention officers as
well as other male detainees, which the Ninth Circuit
determined violated the Fourth Amendment’s prohibition on
unreasonable searches. Parents for Privacy, 326 F. Supp. 3d
at 1097.
Because “none of these cases support[ed] the proposition
that high school students have a fundamental right not to
share restrooms and locker rooms with transgender students
who have a different assigned sex than theirs,” the district
PARENTS FOR PRIVACY V. BARR 21
court concluded that “Plaintiffs have failed to sufficiently
allege a fundamental right to privacy cognizable under the
Fourteenth Amendment.”10 Id. at 1096–99. It explained that
“[t]o hold otherwise would sweepingly expand the right to
privacy beyond what any court has recognized,” in
contravention of the Supreme Court’s reluctance to expand
the “short list” of liberty rights protected by the Due Process
Clause, including “the rights to marry, to have children, to
direct the education and upbringing of one’s children, to
marital privacy, to use contraception, to bodily integrity, and
to abortion.” Id. at 1099 (quoting Glucksberg, 521 U.S.
at 720). Thus, because “[t]he potential threat that a high
school student might see or be seen by someone of the
opposite biological sex while either are undressing or
performing bodily functions in a restroom, shower, or locker
room does not give rise to a constitutional violation,” the
district court concluded that Plaintiffs failed to state a claim
for violation of the Fourteenth Amendment. See id.
10
For further support for the obvious distinction between Plaintiffs’
cited cases and the circumstances presented in this case, the district court
pointed to several out-of-circuit cases similar to this one in which courts
also rejected Plaintiffs’ purported privacy interest, in favor of transgender
students’ access to school facilities. Parents for Privacy, 326 F. Supp. 3d
at 1093–96; see, e.g., Doe ex rel. Doe v. Boyertown Area Sch. Dist.,
897 F.3d 518, 531 (3d Cir. 2018) (“[W]e decline to recognize such an
expansive constitutional right to privacy—a right that would be violated
by the presence of students [in restrooms or locker rooms] who do not
share the same birth sex.”), cert. denied, 139 S. Ct. 2636 (2019); Whitaker
ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034, 1052 (9th Cir. 2017) (“A transgender student’s presence
in the restroom provides no more of a risk to other students’ privacy rights
than the presence of . . . any other student who used the bathroom at the
same time.”), cert. dismissed, 138 S. Ct. 1260 (2018).
22 PARENTS FOR PRIVACY V. BARR
On appeal, Plaintiffs make several ultimately unavailing
arguments about why the district court erred in dismissing
their privacy rights claim under the Fourteenth Amendment.
First, they argue that the Ninth Circuit in York, 324 F.2d
at 455, recognized the right to bodily privacy when it
commented that “[t]he desire to shield one’s unclothed figure
from views of strangers, and particularly strangers of the
opposite sex, is impelled by elementary self-respect and
personal dignity.” The problem with this argument is that
York addressed an egregious privacy violation by police and
recognized a much more specific and limited Due Process
privacy right than Plaintiffs claim here. As noted, York
involved a male police officer who coerced a female assault
victim to allow him to take unnecessary nude photographs of
her, which he later distributed to other officers. See id.
at 452. In discussing the plaintiff’s claim for violation of her
fundamental right to privacy under the Fourteenth
Amendment, we explained:
We are not called upon to decide as an
original proposition whether ‘privacy,’ as
such, is comprehended within the ‘liberty’ of
which one may not be deprived without due
process of law, as used in the Due Process
Clause of the Fourteenth Amendment. For it
has already been declared by the Supreme
Court that the security of one’s privacy
against arbitrary intrusion by the police is
basic to a free society and is therefore
‘implicit in the concept of ordered liberty,’
embraced within the Due Process Clause of
the Fourteenth Amendment.
Id. at 454–55 (emphasis added) (footnote omitted).
PARENTS FOR PRIVACY V. BARR 23
Thus, York recognized an established right to be free from
arbitrary police intrusions upon one’s privacy under the
Fourth Amendment. See id. at 455 (“A search of one’s home
has been established to be an invasion of one’s privacy
against intrusion by the police, which, if ‘unreasonable,’ is
arbitrary and therefore banned under the Fourth Amendment.
We do not see how it can be argued that the searching of
one’s home deprives him of privacy, but the photographing
of one’s nude body, and the distribution of such photographs
to strangers does not.” (footnote omitted)). Thus, York did
not recognize a more general right to be free from alleged
privacy intrusions by other non-government persons, or a
privacy right to avoid any risk of being exposed briefly to
opposite-sex nudity by sharing locker facilities with
transgender students in public schools.
Moreover, the actions that the Ninth Circuit concluded
made the police’s intrusion in York so arbitrary as to rise to
the level of a violation of the plaintiff’s privacy right under
the Due Process Clause were far more invasive than the
transgender student’s actions alleged in this case. In York, we
explained:
[W]e [cannot] imagine a more arbitrary police
intrusion upon the security of [a person’s]
privacy than for a male police officer to
unnecessarily photograph the nude body of a
female citizen who has made complaint of an
assault upon her, over her protest that the
photographs would show no injuries, and at a
time when a female police officer could have
been, but was not, called in for this purpose,
and to distribute those photographs to other
personnel of the police department despite the
24 PARENTS FOR PRIVACY V. BARR
fact that such distribution of the photographs
could not have aided in apprehending the
person who perpetrated the assault.
Id. Here, Plaintiffs do not allege that transgender students are
taking nude photographs of them or purposefully taking overt
steps to invade their privacy for no legitimate reason. Thus,
beyond failing to support the broad privacy right claimed by
Plaintiffs, York is also readily distinguishable on its facts.
Next, Plaintiffs point to out-of-circuit cases to argue that
the Fourteenth Amendment protects a “privacy interest in [a
person’s] partially clothed body.” See, e.g., Doe v. Luzerne
County, 660 F.3d 169, 175–76 & 176 n.5 (3d Cir. 2011). But
beyond the fact that those cases are not binding, none of them
directly supports Plaintiffs’ argument that the Constitution
affords a broad privacy right protecting against being exposed
in even a partial state of undress to any person of the opposite
sex, whether or not they are a government actor. For
example, Luzerne County involved the unconsented and
surreptitious filming of a female deputy sheriff by male
superior officers while she was completely undressed, and the
subsequent sharing of the video footage and still photos. See
id. at 171–73, 175–78. The Third Circuit analyzed whether
the public disclosure of those files violated constitutional
“protect[ions] against public disclosure [of] . . . highly
personal matters representing the most intimate aspects of
human affairs,” id. at 176 (second alteration in original)
(quoting Nunez v. Pachman, 578, F.3d 228, 232 (3d Cir.
2009), noting that “a person’s right to avoid disclosure of
personal matters is not absolute,” id. at 178, because
“[d]isclosure may be required if the government interest in
disclosure outweighs the individual’s privacy interest,” id.
(quoting Fraternal Order of Police, Lodge No. 5 v. City of
PARENTS FOR PRIVACY V. BARR 25
Philadelphia, 812 F.2d 105, 110 (3d Cir. 1987)). Thus, both
the facts and the legal issue in Luzerne are distinguishable
from the case at bench, because this case does not involve a
privacy intrusion by government officers or the public
disclosure of photos or video footage.11
Finally, Plaintiffs attempt to support their Fourteenth
Amendment argument by pointing to cases suggesting that
providing separate restrooms for males and females is not
illegal, cases discussing Fourth Amendment violations, and
cases addressing whether Title VII protects against
discrimination on the basis of sexual orientation or gender
identity. Those cases, however, are inapposite; none
establishes a Fourteenth Amendment right to privacy that
protects against any risk of bodily exposure to a transgender
student in school facilities.
In sum, Plaintiffs fail to show that the contours of the
privacy right protected by the Fourteenth Amendment are so
11
Other cases cited by Plaintiffs are similarly inapposite. Poe v.
Leonard, 282 F.3d 123 (2d Cir. 2002), also involved the surreptitious and
unconsented filming of a female officer by a male law enforcement
officer. See id. at 138. The court concluded that the plaintiff had stated
a claim for a violation of her Fourteenth Amendment privacy rights
because the officer’s behavior constituted “arbitrary government action”
that “shock[ed] the conscience” and was “without any reasonable
justification in the service of a legitimate governmental objective.” Id.
at 139 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 845–46
(1998)). Again, the instant case does not involve an arbitrary privacy
intrusion by a law enforcement officer in the form of unconsented filming.
Similarly, Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994), is
distinguishable because it involved a non-emergency strip search of a
male inmate by two female deputies, even though other male officers were
nearby and could have conducted the search. See id. at 184–85.
26 PARENTS FOR PRIVACY V. BARR
broad as to protect against the District’s implementation of
the Student Safety Plan.12 This conclusion is supported by
the fact that the Student Safety Plan provides alternative
options and privacy protections to those who do not want to
share facilities with a transgender student, even though those
alternative options admittedly appear inferior and less
convenient. See Caribbean Marine Servs. Co. v. Baldrige,
844 F.2d 668, 678 (9th Cir. 1998) (suggesting that in cases in
which privacy interests must be weighed against
governmental interests, inconvenience and slight discomfort
that results from attempting to accommodate both interests
are not enough to establish a privacy violation).
Accordingly, we affirm the district court’s dismissal with
prejudice of Plaintiffs’ claim for violation of privacy under
the Fourteenth Amendment’s Due Process Clause. See
Albright v. Oliver, 510 U.S. 266, 271 (1994) (holding that the
plaintiff’s § 1983 claim failed where the plaintiff failed to
establish that he was deprived of a substantive due process
right secured by the Constitution). Because this claim is
premised on the violation of an asserted right that, as a matter
12
As a result, Plaintiffs’ argument that the District placed an
unconstitutional condition on their privacy rights by implementing the
Student Safety Plan also fails. If the asserted right is not protected by the
Constitution, then any conditions that the District allegedly placed on the
asserted right cannot be constitutionally impermissible. See Koontz v. St.
Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (“[T]he
unconstitutional conditions doctrine . . . vindicates the Constitution’s
enumerated rights by preventing the government from coercing people
into giving them up.”).
PARENTS FOR PRIVACY V. BARR 27
of law, is not protected by the Fourteenth Amendment’s Due
Process Clause, amendment of this claim would be futile.13
B.
Next, Plaintiffs contend that the district court erred in
failing to recognize that the District’s policy violates Title IX
by turning locker rooms, showers, and multi-user restrooms
into sexually harassing environments and by forcing students
to forgo use of such facilities as the solution to harassment.
Title IX provides that “[n]o person in the United States
shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial assistance . . . .” 20 U.S.C. § 1681(a). Plaintiffs
allege that the Student Safety Plan violates Title IX because
it “produces unwelcome sexual harassment and create[s] a
hostile environment on the basis of sex.” They allege that the
Plan “needlessly subjects Student Plaintiffs to the risk that
their partially or fully unclothed bodies will be exposed to
students of the opposite sex and that they will be exposed to
opposite-sex nudity, causing the Student Plaintiffs to
experience embarrassment, humiliation, anxiety, intimidation,
fear, apprehension, stress, degradation, and loss of dignity.”
13
Because we agree with the district court that the right to privacy on
which Plaintiffs’ claim is premised is not protected by the Constitution, we
do not reach the district court’s further conclusions that: (1) even if the
right asserted by Plaintiffs were protected by the Constitution, the
presence of a transgender student in school facilities does not infringe that
right, see Parents for Privacy, 326 F. Supp. 3d at 1100–01; and
(2) policies permitting transgender access further a compelling state
interest in protecting transgender students from discrimination and are
narrowly tailored to satisfy strict scrutiny. Id.
28 PARENTS FOR PRIVACY V. BARR
According to Plaintiffs, “[a]llowing people to use restrooms,
locker rooms or showers designated for the opposite
biological sex violates privacy and creates a sexually
harassing environment,” in part because “[e]xposure to
opposite-sex nudity creates a sexually harassing hostile
environment.” As a result of this allegedly harassing
environment, “all Student Plaintiffs find that school has
become intimidating and stressful,” and some of them “are
avoiding the restroom” and “are not able to concentrate as
well in school.”
Stating a Title IX hostile environment claim requires
alleging that the school district: (1) had actual knowledge of;
(2) and was deliberately indifferent to; (3) harassment
because of sex that was; (4) “so severe, pervasive, and
objectively offensive that it can be said to deprive the victims
of access to the educational opportunities or benefits provided
by the school.” Davis ex rel. laShonda D. v. Monroe Cty. Bd.
of Educ., 526 U.S. 629, 650 (1999); see also Reese v.
Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738–39 (9th Cir.
2000). The district court ruled that Plaintiffs had failed to
establish the third and fourth elements and, on that basis,
dismissed Plaintiffs’ Title IX hostile environment claim.
Parents for Privacy, 326 F. Supp. 3d at 1104.
The district court concluded that the alleged harassment
was not discrimination on the basis of sex within the meaning
of Title IX, because the “District’s plan does not target any
Student Plaintiff because of their sex.” Id. at 1102. Rather,
the Student Safety Plan applies to all students regardless of
their sex, and therefore “Student Plaintiffs have not
demonstrated that they are being treated any differently from
other students at Dallas High School.”
PARENTS FOR PRIVACY V. BARR 29
In addition, the district court held that Plaintiffs failed to
show “that the District’s Plan discriminates because of sex, or
that it creates a severe, pervasive, and objectively offensive
environment.” Id. at 1104. The court explained that, in
contrast to cases involving “egregious and persistent acts of
sexual violence and verbal harassment,” “[c]ourts have
recognized that the presence of transgender people in an
intimate setting does not, by itself, create a sexually harassing
environment that is severe or pervasive.” Id. at 1102; see
also id. at 1102–04 (discussing cases). Noting Plaintiffs’
failure to cite supporting authority, the district court rejected
Plaintiffs’ arguments that harassment was pervasive because
the District’s Plan is “widely applied” and that the Plan is
objectively offensive because sex-segregated facilities are the
well-established norm. Id. at 1103–04.
Again, we agree with the district court’s analysis and find
Plaintiffs’ contrary arguments unpersuasive. First, Plaintiffs
argue broadly that Title IX “unequivocally uphold[s] the right
to bodily privacy” and therefore requires that facilities be
segregated based on “biological” sex rather than “gender
identity.” To support this argument, Plaintiffs point out that
the statute provides that it should not be construed to
“prohibit any educational institution . . . from maintaining
separate living facilities for the different sexes,” 20 U.S.C.
§ 1686, and that Title IX’s implementing regulations
specifically authorize providing separate but comparable
“toilet, locker room, and shower facilities on the basis of
sex,” 34 C.F.R. § 106.33. Plaintiffs further argue that Title
IX’s text and its legislative history make clear that the
permitted basis on which such “separate” facilities may be
segregated—“sex”— refers to “biological sex” as assigned at
birth, and cannot encompass gender identity.
30 PARENTS FOR PRIVACY V. BARR
But just because Title IX authorizes sex-segregated
facilities does not mean that they are required, let alone that
they must be segregated based only on biological sex and
cannot accommodate gender identity. Nowhere does the
statute explicitly state, or even suggest, that schools may not
allow transgender students to use the facilities that are most
consistent with their gender identity. That is, Title IX does
not specifically make actionable a school’s decision not to
provide facilities segregated by “biological sex”; contrary to
Plaintiffs’ suggestion, the statute does not create distinct
“bodily privacy rights” that may be vindicated through suit.
Instead, Title IX provides recourse for discriminatory
treatment “on the basis of sex.” 20 U.S.C. § 1681(a). Thus,
even if Plaintiffs are correct that “Congress intended to
preserve distinct privacy facilities based on biological sex”
and that the District chose not to do so, that fact alone is
insufficient to state a legally cognizable claim under Title IX.
Rather, to show that the District violated Title IX, Plaintiffs
must establish that the District had actual knowledge of and
was deliberately indifferent to harassment because of sex that
was “so severe, pervasive, and objectively offensive that it
can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school.” Davis,
526 U.S. at 650; see also Reese, 208 F.3d at 739.
Plaintiffs focus on the third and fourth elements of a Title
IX hostile environment claim, as did the district court, namely
whether there was harassment because of sex that was so
severe, pervasive, and objectively offensive that it deprived
Plaintiffs of access to the educational opportunities or
benefits provided by Dallas High School. First, Plaintiffs
assert that the Student Safety Plan created harassment on the
basis of sex “because the only way to achieve the policy’s
purpose of opposite-sex affirmation is to select facilities
PARENTS FOR PRIVACY V. BARR 31
based on the sex (or gender identity) of users.” But just
because the Student Safety Plan implicitly addresses the
topics of sex and gender by seeking to accommodate a
transgender student’s gender identity, or because it segregates
facilities by gender identity, does not mean that the Plan
harasses other students on the basis of their sex. As the
district court explained, the Plan does not target students or
discriminate against them on the basis of their sex; the
Student Safety Plan treats all students—male and
female—the same. See Parents for Privacy, 326 F. Supp. 3d
at 1096–97.
Plaintiffs respond that the district court’s conclusion that
there was no harassment based on sex because the Student
Safety Plan affects all students equally is “legally and
logically indefensible.” Plaintiffs argue that the fact that the
Student Safety Plan affects both sexes does not preclude a
Title IX violation, because the Plan actually harasses both
sexes on the basis of their sex by allowing students assigned
the opposite sex at birth to enter privacy facilities. But
Plaintiffs cite no authority to support the notion that “equal
harassment” against both sexes is cognizable under Title IX.
To the contrary, treating both male and female students
the same suggests an absence of gender/sex animus, while
Title IX is aimed at addressing discrimination based on sex or
gender stereotypes. Numerous courts have ruled that a Title
IX sexual harassment hostile environment claim fails where
the alleged harassment is inflicted without regard to gender
or sex, i.e., where there is no discrimination. See Doe ex rel.
Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d 324,
394–95 (E.D. Pa. 2017) (collecting cases), aff’d, 897 F.3d
518 (3d Cir. 2018), cert. denied, 139 S. Ct. 2636 (2019). We
see no reason to arrive at a different conclusion here.
32 PARENTS FOR PRIVACY V. BARR
Plaintiffs’ argument that the alleged harassment was “based
on sex” because it involved opposite-sex nudity conflates the
basis for the perceived harm—a distinction between
biological sexes—with the basis for the alleged harassment,
which, as discussed above, Plaintiffs have not shown was
discriminatory or motivated by any gender animus. In sum,
the district court correctly ruled that Plaintiffs failed to
establish the third element of their Title IX claim. See
Parents for Privacy, 326 F. Supp. 3d at 1102.
The district court also correctly ruled that Plaintiffs failed
to establish the fourth element of their Title IX claim. See id.
at 1104. Plaintiffs argue that they satisfy the fourth element
of a hostile environment claim because the alleged
harassment is both viewed subjectively as harassment by the
victims and is, objectively, sufficiently severe or pervasive
that a reasonable person would agree that it is harassment.
However, even crediting Plaintiffs’ subjective perceptions,
under the totality of the circumstances, the alleged
harassment is not so severe, pervasive, and objectively
offensive to rise to the level of a Title IX violation. Plaintiffs
do not allege that transgender students are making
inappropriate comments, threatening them, deliberately
flaunting nudity, or physically touching them. Rather,
Plaintiffs allegedly feel harassed by the mere presence of
transgender students in locker and bathroom facilities. This
cannot be enough. The use of facilities for their intended
purpose, without more, does not constitute an act of
harassment simply because a person is transgender. See
Cruzan v. Special Sch. Dist., # 1, 294 F.3d 981, 984 (8th Cir.
2002) (per curiam) (concluding that a transgender woman’s
“merely being present in the women’s . . . restroom” did not
constitute actionable sexual harassment of her female co-
workers); cf. Davis, 526 U.S. at 650, 652–53 (explaining that
PARENTS FOR PRIVACY V. BARR 33
“peer harassment . . . is less likely to [violate Title IX] than is
teacher-student harassment” in part because “simple acts of
teasing and name-calling among school children” do not
establish severe harassment, and noting that “[t]he most
obvious example of student-on-student sexual harassment
capable of triggering a damages claim would . . . involve the
overt, physical deprivation of access to school resources,” for
example by making effective physical threats).
Accordingly, we affirm the district court’s dismissal with
prejudice of Plaintiffs’ Title IX hostile environment claim.
Because the Student Safety Plan does not discriminate on the
basis of sex, amendment would be futile.
C.
Next, Plaintiffs challenge the dismissal of their
Fourteenth Amendment claim for violation of Parent
Plaintiffs’ fundamental rights to direct the care, education,
and upbringing of their children.
As discussed above, the Fourteenth Amendment’s Due
Process Clause “specially protects those fundamental rights
and liberties which are, objectively, deeply rooted in this
Nation’s history and tradition, and implicit in the concept of
ordered liberty.” Glucksberg, 521 U.S. at 720–21 (internal
quotation marks and citations omitted). The Supreme Court
has held that one such fundamental liberty interest protected
by the Due Process Clause is “the fundamental right of
parents to make decisions concerning the care, custody, and
34 PARENTS FOR PRIVACY V. BARR
control of their children.”14 Troxel v. Granville, 530 U.S. 57,
66 (2000); see also Fields, 427 F.3d at 1204. Among other
things, this right means that
the state cannot prevent parents from choosing
a specific educational program—whether it be
religious instruction at a private school or
instruction in a foreign language. That is, the
state does not have the power to “standardize
its children” or “foster a homogenous people”
by completely foreclosing the opportunity of
individuals and groups to choose a different
path of education.
Id. at 1205 (quoting Brown v. Hot, Sexy & Safer Prods., Inc.,
68 F.3d 525, 533–34 (1st Cir.1995), abrogated on other
grounds by Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010)).
This freedom, however, does not “encompass[] a fundamental
constitutional right to dictate the curriculum at the public
school to which [parents] have chosen to send their children.”
Id.
Parent Plaintiffs allege that the fundamental parental right
to make decisions concerning the care, custody, and control
of their children also encompasses the following rights:
(1) “the power to direct the education and upbringing of
[their] children”; (2) the right to “instill moral standards and
values in their children”; (3) the “right to determine whether
and when their children will have to risk being exposed to
opposite sex nudity at school”; and (4) the “right to determine
14
This right is commonly referred to as the Meyer–Pierce right
because it finds its origin in two Supreme Court cases, Meyer v. Nebraska,
262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925).
PARENTS FOR PRIVACY V. BARR 35
whether their children, while at school, will have to risk
exposing their own undressed or partially unclothed bodies to
members of the opposite sex” in “intimate, vulnerable
settings like restrooms, locker rooms and showers.” Parent
Plaintiffs claim that the District’s implementation of the
Student Safety Plan violates these rights, and therefore the
Fourteenth Amendment, because Parent Plaintiffs “do not
want their minor children to endure the risk of being exposed
to the opposite sex . . . nor do they want their minor children
to attend to their personal, private bodily needs in the
presence of members of the opposite sex.” They explain that
they “desire to raise their children with a respect for
traditional modesty, which requires that one not undress or
use the restroom in the presence of the opposite sex,” and that
some parents also object to the Student Safety Plan because
of “sincerely-held religious beliefs.”
The district court disposed of this claim on the ground
that the fundamental parental right protected by the
Fourteenth Amendment’s Due Process Clause is narrower
than Plaintiffs assert. See Parents for Privacy, 326 F. Supp.
3d at 1108–09. The district court reasoned that although
Parent Plaintiffs have the right to choose where their children
obtain an education, meaning that they have a right to remove
their children from Dallas High School if they disapprove of
transgender student access to facilities, binding Ninth Circuit
authority makes clear that “Parent Plaintiffs’ Fourteenth
Amendment liberty interest in the education and upbringing
of their children ‘does not extend beyond the threshold of the
school door.’” Id. at 1109 (quoting Fields, 427 F.3d
36 PARENTS FOR PRIVACY V. BARR
at 1207).15 The district court thus disagreed with Plaintiffs’
unsupported proposition that parents “retain the right to
prevent transgender students from sharing school facilities
with their children.” Id.
On appeal, Parent Plaintiffs argue that the district court
erroneously limited their fundamental parental rights. They
challenge in particular the district court’s conclusion that
their parental rights do not “extend beyond the threshold of
the school door.” Plaintiffs, relying on Troxel, 530 U.S. at
65–66 (quoting Prince v. Massachusetts, 321 U.S. 158, 166
(1944)), note that “the custody, care, and nurture of the child
reside first in the parents, whose primary function and
freedom include preparation for obligations the state can
neither supply nor hinder.” But other than affirming that
parents have a long-recognized constitutional right to “make
decisions concerning the care, custody, and control of their
children,” Troxel lends no concrete support to Plaintiffs’
specific argument in this case. Id. at 66. Troxel concerned a
state government’s interference with a mother’s decision
about the amount of visitation with her daughters’ paternal
grandparents that was in her daughters’ best interests; it did
not address the extent of parents’ rights to direct the policies
of the public schools that their children attend.16 See id.
15
Although it does not affect the application of Fields to this case or
the merits of Plaintiffs’ substantive argument, it is worth noting that we
deleted the phrase “do[] not extend beyond the threshold of the school
door” from the Fields opinion upon denial of rehearing. See Fields, 427
F.3d at 1190–91.
16
Similarly, Plaintiffs’ reliance on Wisconsin v. Yoder, 406 U.S. 205
(1972), in their reply brief is unavailing. In that case, the Supreme Court
held that the state of Wisconsin could not compel Amish parents to send
their children to formal high school up to the age of 16, because as applied
PARENTS FOR PRIVACY V. BARR 37
at 67–73. Moreover, we have previously explained that
although the Supreme Court “recognized that parents’ liberty
interest in the custody, care, and nurture of their children
resides ‘first’ in the parents, [it] does not reside there
exclusively, nor is it ‘beyond regulation [by the state] in the
public interest.’” Fields, 427 F.3d at 1204 (second alteration
in original) (quoting Prince, 321 U.S. at 166).
Next, Plaintiffs attempt to distinguish Fields, the Ninth
Circuit case on which the district court relied, by pointing out
that the instant case is not about curriculum, but rather “about
conduct authorized by the school allowing opposite-sex
students into privacy facilities.” Fields involved conduct
authorized by the school allowing a researcher to administer
a survey that included questions about sexual topics. Fields,
427 F.3d at 1200–01. We held that although “[p]arents have
a right to inform their children when and as they wish on the
subject of sex,” they “have no constitutional right . . . to
prevent a public school from providing its students with
whatever information it wishes to provide, sexual or
otherwise, when and as the school determines that it is
appropriate to do so.” Id. at 1206. While the purported risk
of Parent Plaintiffs’ children being exposed to the unclothed
bodies of students who were assigned the opposite sex at birth
does not involve the provision of information, as did Fields,
to the Amish parents in that case, doing so violated the Free Exercise
Clause of the First Amendment, and also interfered with “the traditional
interest of parents with respect to the religious upbringing of their
children.” Id. at 214; see also id. at 232–36. Yoder supports the district
court’s recognition that parents have the right to remove their children
from Dallas High School, but it does not support Plaintiffs’ assertion that
their parental rights go beyond that decision and extend to a right to
require a particular bathroom access policy for transgender students.
38 PARENTS FOR PRIVACY V. BARR
it similarly involves students being exposed to things of
which their parents disapprove.
In any case, in Fields we adopted the Sixth Circuit’s view
that parents not only lack a constitutional right to direct the
curriculum that is taught to their children, but that they also
lack constitutionally protected rights to direct school
administration more generally. See id. at 1206 (rejecting a
“curriculum exception”). Specifically, we endorsed the Sixth
Circuit’s explanation that:
While parents may have a fundamental right
to decide whether to send their child to a
public school, they do not have a fundamental
right generally to direct how a public school
teaches their child. Whether it is the school
curriculum, the hours of the school day,
school discipline, the timing and content of
examinations, the individuals hired to teach at
the school, the extracurricular activities
offered at the school or . . . a dress code, these
issues of public education are generally
committed to the control of state and local
authorities.
Id. (internal quotation marks omitted) (quoting Blau v. Fort
Thomas Pub. Sch. Dist., 401 F.3d 381, 395–96 (6th Cir.
2005)). This binding precedent thus directly supports the
district court’s conclusion that Parent Plaintiffs lack a
fundamental right to direct Dallas High School’s bathroom
and locker room policy.
Plaintiffs nonetheless argue that, contrary to Fields, the
Supreme Court has extended parental rights into the
PARENTS FOR PRIVACY V. BARR 39
classroom. Specifically, they argue that the Supreme Court
has ruled that students from Jehovah’s Witness families could
not be compelled to recite the Pledge of Allegiance at
school.17 See W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624, 642 (1943). But that Supreme Court decision rested on
the First Amendment;18 nowhere did the Supreme Court
reference the fundamental rights of parents to direct their
children’s upbringing.19 See Barnette, 319 U.S. at 639, 642.
Thus, Plaintiffs fail to cite any Supreme Court authority
17
Plaintiffs cite Minersville School District v. Gobitis, 310 U.S. 586,
for this proposition, but Gobitis actually held the opposite—namely, that
the government could require students to salute the flag. The Supreme
Court, however, overruled Gobitis three years later in West Virginia State
Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Thus, we
assume that Plaintiffs actually intended to cite Barnette, particularly
because their Gobitis’ pincite of “642” appears in Barnette, but not in
Gobitis.
18
Similarly, Tinker v. Des Moines Independent Community School
District, 393 U.S. 503 (1969), and Shelton v. Tucker, 364 U.S. 479 (1960),
both of which Plaintiffs cite in their reply, also rested on the First
Amendment and its protection of students’ and teachers’ freedoms of
speech and association.
19
Moreover, unlike the instant case, Barnette involved “a compulsion
of students to declare a belief.” Barnette, 319 U.S. at 631. The Student
Safety Plan does not compel a declaration of support for any particular
belief. And in Barnette, the Court also noted that the appellees’ asserted
freedom not to salute the flag “does not bring them into collision with
rights asserted by any other individual.” Id. at 630. Here, in contrast,
Plaintiffs’ asserted right not to be exposed to any risk of seeing in a state
of undress (or being seen by) any person who was assigned the opposite
sex at birth does “bring them into collision with rights asserted by . . .
other[s],” namely the rights of transgender students to use the locker
rooms that match their gender identity and to avoid being subject to
discrimination based on gender stereotypes regarding the sex assigned to
them at birth. See id.
40 PARENTS FOR PRIVACY V. BARR
showing that parents’ substantive due process rights under the
Fourteenth Amendment encompass a right to direct the
curriculum, administration, or policies of public schools.
Finally, perhaps recognizing the lack of supporting case
law, Plaintiffs argue that the following items both “undercut[]
the district court’s unprincipled expansion of Fields” and
support the constitutional parental rights that Plaintiffs assert:
(1) that “no one would seriously suggest [that] parents lack
any means to assure their students are free from physical
assault, coercive threats[,] or criminal activity”; (2) that
“federal law and Oregon law confer on parents the right to
inspect instructional materials upon request”; (3) that
Congress in 2002 “enacted a federal law that no student can
be required to take a survey concerning sexual behavior or
attitudes unless the school provides parents with the survey
before administering the survey to students and receives
consent to administer the survey”; and (4) that “many states,
including Oregon, have in place laws regulating public school
education that require schools to allow parents to opt their
children out of certain situations concerning sexual right [sic]
and sex education.” However, those assertions, even if true,
do not establish that the Fourteenth Amendment’s Due
Process Clause protects the right asserted by Plaintiffs in this
case. Although state and federal statutes may expand upon
constitutional protections by creating new statutory rights,
statutes do not alter the protections afforded by the
Constitution itself.20
20
Plaintiffs provide no citation suggesting that the statutes they cite
were enacted in order to enforce existing constitutional parental rights.
Rather, the opposite inference—that the statutes were enacted to create
rights specifically because the Constitution does not protect such
rights—may be the more reasonable one. Cf. Holt v. Hobbs, 135 S. Ct.
PARENTS FOR PRIVACY V. BARR 41
In sum, Plaintiffs fail to cite any authority that supports
their asserted fundamental Fourteenth Amendment parental
right to “determine whether and when their children will have
to risk being exposed to opposite sex nudity at school” and
“whether their children, while at school, will have to risk
exposing their own undressed or partially unclothed bodies to
members of the opposite sex” in “intimate, vulnerable
settings like restrooms, locker rooms and showers.” In fact,
Fields makes clear that the fundamental right to control the
upbringing of one’s children does not extend so far as
Plaintiffs’ hypothesize. See Fields, 427 F.3d at 1206–07.
Plaintiffs neither distinguish this precedent nor address the
practical issue raised by Fields: that accommodating the
different “personal, moral, or religious concerns of every
parent” would be “impossible” for public schools, because
different parents would often likely, as in this case, prefer
opposite and contradictory outcomes. Id. at 1206. As a
result, Plaintiffs’ legal theory fails. Considering that
Supreme Court and Ninth Circuit case law not only have not
recognized the specific rights asserted by Plaintiffs, but
further forecloses recognizing such rights as being
encompassed by the fundamental parental rights protected by
the Fourteenth Amendment’s Due Process Clause,
amendment of this claim would be futile.
For the foregoing reasons, we affirm the district court’s
dismissal with prejudice of this claim.
853, 859–60 (2015) (“Following our decision in Employment Division,
Department of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990), Congress enacted [the Religious Freedom Restoration Act of
1993] in order to provide greater protection for religious exercise than is
available under the First Amendment.”).
42 PARENTS FOR PRIVACY V. BARR
D.
Fourth, Plaintiffs contend that the district court erred in
dismissing their claim for violation of their First Amendment
free exercise rights.
The First Amendment provides that “Congress shall make
no law respecting an establishment of religion, or prohibiting
the free exercise thereof . . . .” U.S. Const., amend. I. “The
free exercise of religion means, first and foremost, the right
to believe and profess whatever religious doctrine one
desires.” Emp’t Div., Dep’t of Human Res. of Or. v. Smith,
494 U.S. 872 877 (1990), superseded by statute in other
contexts as stated in Holt, 135 S. Ct. at 859–60. The
Supreme Court has explained that the First Amendment
“obviously excludes all ‘governmental regulation of religious
beliefs as such,’” meaning that “[t]he government may not
compel affirmation of religious belief, punish the expression
of religious doctrines it believes to be false, impose special
disabilities on the basis of religious views or religious status,
or lend its power to one or the other side in controversies over
religious authority or dogma.” Id. (citations omitted)
(quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)). The
Supreme Court has also suggested that the government would
interfere with the free exercise of religion impermissibly if it
sought to ban the performance of or abstention from certain
physical acts, but “only when [those acts] are engaged in for
religious reasons, or only because of the religious belief that
they display.” Id. Nevertheless, the “freedom to act”
pursuant to one’s religious beliefs “cannot be” absolute;
“[c]onduct remains subject to regulation for the protection of
society.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th
Cir. 2009) (citing Cantwell v. Connecticut, 310 U.S. 296,
303–04 (1940)). Thus, “[t]he Cantwell right to freely
PARENTS FOR PRIVACY V. BARR 43
exercise one’s religion . . . ‘does not relieve an individual of
the obligation to comply with a “valid and neutral law of
general applicability on the ground that the law proscribes (or
prescribes) conduct that his [or her] religion prescribes (or
proscribes).”’” Id. at 1127 (quoting Smith, 494 U.S. at 879).
Here, Plaintiffs claim that the Student Safety Plan violates
their First Amendment rights to freely exercise their religion
because the Student Safety Plan forces them to be exposed to
an environment in school bathrooms and locker facilities that
conflicts with, and prevents them from fully practicing, their
religious beliefs. Specifically, the complaint alleges that
many Student Plaintiffs and some Parent Plaintiffs “have the
sincere religious belief” that children “must not undress, or
use the restroom, in the presence of a member of the opposite
biological sex, and also that they must not be in the presence
of the opposite biological sex while the opposite biological
sex is undressing or using the restroom.” Because the
Student Safety Plan permits transgender students who were
assigned the opposite biological sex at birth into their locker
rooms, the Plan “prevents Student Plaintiffs from practicing
the modesty that their faith requires of them, and it further
interferes with Parent Plaintiffs teaching their children
traditional modesty and insisting that their children practice
modesty, as their faith requires.” Plaintiffs further assert that,
as a result, “[c]omplying with the requirements of the Student
Safety Plan . . . places a substantial burden on the Plaintiffs’
exercise of religion by requiring Plaintiffs to choose between
the benefit of a free public education and violating their
religious beliefs.”
The district court dismissed this claim on the basis that
the Student Safety Plan was neutral and generally applicable
with respect to religion, noting that “neutral, generally
44 PARENTS FOR PRIVACY V. BARR
applicable laws that incidentally burden the exercise of
religion usually do not violate the Free Exercise Clause of the
First Amendment” because they need only be “rationally
related to a legitimate government interest.” Parents for
Privacy, 326 F. Supp. 3d at 1110 (quoting Holt, 135 S. Ct. at
859) (citing Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531 (1993)). The district court
rejected Plaintiffs’ assertion that, because the Plan pertains
specifically to Student A, the Plan is not generally applicable.
Id. The court, citing Lukumi, 508 U.S. at 532–33, explained
that “Plaintiffs misunderstand the law,” because neutrality
and general applicability are “considered with respect to
religion” rather than with respect to the person or groups to
which the law most directly pertains. Parents for Privacy,
326 F. Supp. 3d at 1110. Because the District’s Plan did not
force any Plaintiff to embrace a religious belief and did not
punish anyone for expressing their religious beliefs, the
district court concluded that the Plan is “neutral and generally
applicable with respect to religion,” and therefore did not
violate Plaintiffs’ First Amendment rights. Id.
On appeal, Plaintiffs argue that the district court should
have applied strict scrutiny because, contrary to the district
court’s conclusion, the Student Safety Plan is not neutral or
generally applicable. Plaintiffs point out that the Student
Safety Plan was implemented to benefit one student in
particular, and they claim, without any supporting citation,
that “a policy implemented for a single student is not
generally applicable.” Plaintiffs do not address the district
court’s reasoning that neutrality and general applicability are
considered with respect to religion. Nor does their argument
acknowledge that the Plan applies to all transgender students,
not just to Student A; that is, the argument does not
PARENTS FOR PRIVACY V. BARR 45
distinguish between an event that triggered development of a
policy and the breadth of the resulting policy itself.
In assessing neutrality and general applicability, courts
evaluate both “the text of the challenged law as well as the
effect . . . in its real operation.” Storman, Inc. v. Wiesman,
794 F.3d 1064, 1076 (9th Cir. 2015) (ellipsis in original)
(internal quotation marks omitted). As the district court
correctly explained, the two tests for whether a law is neutral
and generally applicable focus on whether a law specifically
targets or singles out religion. See Parents for Privacy,
326 F. Supp. 3d at 1110; Lukumi, 508 U.S. at 532 (“[T]he
protections of the Free Exercise Clause pertain if the law at
issue discriminates against some or all religious beliefs or
regulates or prohibits conduct because it is undertaken for
religious reasons.”).
First, “if the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral.” Selecky, 586 F.3d at 1130 (emphasis added)
(quoting Lukumi, 508 U.S. at 533). For example, “[a] law
lacks facial neutrality if it refers to a religious practice
without a secular meaning discernable from the language or
context.” Lukumi, 508 U.S. at 533. Even if a law is facially
neutral, it may nonetheless fail the neutrality test if “[t]he
record . . . compels the conclusion that suppression of [a
religion or religious practice] was the object of the
ordinances.” Id. at 534, 542. Thus, in Lukumi, the Supreme
Court concluded that an animal ordinance that in its operation
effectively banned only the ritual animal sacrifice performed
by practitioners of the Santeria religion, was not neutral
because it accomplished a “religious gerrymander,” i.e., an
impermissible attempt to target religious practices through
careful legislative drafting. See id. at 535–37.
46 PARENTS FOR PRIVACY V. BARR
Here, on the other hand, Plaintiffs’ complaint contains no
allegation suggesting that the Student Safety Plan was
adopted with the object of suppressing the exercise of
religion. To the contrary, Plaintiffs allege that the District
developed and implemented the Student Safety Plan in
“response to the threat of [federal] enforcement action” and
in “response to Student A’s complaints for accommodation.”
Moreover, the Student Safety Plan “make[s] no reference to
any religious practice, conduct, belief, or motivation.” See
Wiesman, 794 F.3d at 1076. Instead, the Plan itself states that
it was “created to support a transgender male expressing the
right to access the boy’s locker room at Dallas High School.”
Plaintiffs do not counter this evidence or point to anything in
the record suggesting that the Student Safety Plan was
adopted with the specific purpose of infringing on Plaintiffs’
religious practices or suppressing Plaintiffs’ religion.
Accordingly, the district court correctly concluded that the
Student Safety Plan is neutral for purposes of analyzing the
free exercise claim.
Second, the question of general applicability addresses
whether a law treats religious observers unequally. See
Lukumi, 508 U.S. at 542. For example, “inequality results
when a legislature decides that the governmental interests it
seeks to advance are worthy of being pursued only against
conduct with a religious motivation.” Id. at 542–43. Thus,
“[a] law is not generally applicable if its prohibitions
substantially underinclude non-religiously motivated conduct
that might endanger the same governmental interest that the
law is designed to protect.” Wiesman, 794 F.3d at 1079
(citing Lukumi, 508 U.S. at 542–46). “In other words, if a
law pursues the government’s interest ‘only against conduct
motivated by religious belief,’ but fails to include in its
prohibitions substantial, comparable secular conduct that
PARENTS FOR PRIVACY V. BARR 47
would similarly threaten the government’s interest, then the
law is not generally applicable.” Id. (quoting Lukumi,
508 U.S. at 545). For example, in Lukumi, the Court
concluded that the challenged ordinances were not generally
applicable because they “pursue[d] the city’s governmental
interests only against conduct motivated by religious belief”
and “fail[ed] to prohibit nonreligious conduct that
endanger[ed] these interests in a similar or greater degree
than Santeria sacrifice does.” Lukumi, 508 U.S. at 543, 545;
see also Selecky, 586 F.3d at 1134.
Here, the Student Safety Plan is not underinclusive,
because it does not require only religious students to share a
locker room with a transgender student who was assigned the
opposite sex at birth, nor does the Plan require only religious
teachers and staff to receive training or to teach about anti-
bullying and harassment. In other words, the Student Safety
Plan affects all students and staff—it does not place demands
on exclusively religious persons or conduct. Plaintiffs’
singular argument that the Student Safety Plan is
underinclusive because it was aimed at a particular student
and does not allow every student to use the facilities of their
choosing regardless of biological sex or self-identified gender
misses the mark because it misunderstands the applicable test.
Underinclusiveness is determined with respect to the burdens
on religious and non-religious conduct and the interests
sought to be advanced by the policy. That the Student Safety
Plan focuses on transgender students rather than allowing all
students to claim a right to use whichever facility they wish
regardless of gender is irrelevant because that alleged
underinclusion is not related to the interests furthered by the
plan, and Plaintiffs have not tied it to burdens on secular
versus religious conduct. The correct inquiry here is whether,
in seeking to create a safe, non-discriminatory school
48 PARENTS FOR PRIVACY V. BARR
environment for transgender students, the Student Safety Plan
selectively imposes certain conditions or restrictions only on
religious conduct. Because Plaintiffs have not made any
showing that the Plan does so, the district court correctly
determined that the Plan is generally applicable for purposes
of the free exercise analysis. See Parents for Privacy, 326 F.
Supp. 3d at 1110.
Because the Student Safety Plan qualifies as neutral and
generally applicable, it is not subject to strict scrutiny. See
Selecky, 586 F.3d at 1129 (“[A] neutral law of general
applicability will not be subject to strict scrutiny review.”);
see also Smith, 494 U.S. at 888 (“Precisely because we are a
cosmopolitan nation made up of people of almost every
conceivable religious preference, and precisely because we
value and protect that religious divergence, we cannot afford
the luxury of deeming presumptively invalid, as applied to the
religious objector, every regulation of conduct that does not
protect an interest of the highest order.” (citation and internal
quotation marks omitted)).
Plaintiffs argue that strict scrutiny should nevertheless
apply because this suit concerns the alleged infringement of
multiple constitutional rights. Relying on Smith, 494 U.S. at
882, they argue that “[w]here, as here, plaintiffs allege
multiple fundamental rights arising under the First and
Fourteenth Amendments (bodily privacy, parental rights and
free exercise rights), hybrid rights analysis requires strict
scrutiny as well.” The district court rejected this argument
because it had already dismissed Plaintiffs’ other
constitutional claims. See Parents for Privacy, 326 F. Supp.
3d at 1110 n.10. For the following reasons, we agree with
the district court that Plaintiffs’ argument—that strict scrutiny
is required simply because Plaintiffs alleged multiple
PARENTS FOR PRIVACY V. BARR 49
constitutional claims concerning fundamental rights—fails
here.
The extent to which the hybrid rights exception truly
exists, and what standard applies to it, is unclear. In Smith,
the Court noted that “[t]he only decisions in which we have
held that the First Amendment bars application of a neutral,
generally applicable law to religiously motivated action have
involved not the Free Exercise Clause alone, but the Free
Exercise Clause in conjunction with other constitutional
protections.” Smith, 494 U.S. at 881. However, Smith did
“not present such a hybrid situation,” and thus the Court did
not further explain how a hybrid rights scenario should be
scrutinized. See id. at 882. The Ninth Circuit subsequently
discussed the nature of “hybrid rights” at length, and a three-
judge panel majority concluded that, “[i]n order to trigger
strict scrutiny, a hybrid-rights plaintiff must show a ‘fair
probability’—a ‘likelihood’—of success on the merits of his
companion claim.” Thomas v. Anchorage Equal Rights
Comm’n, 165 F.3d 692, 706 (9th Cir.), reh’g granted, opinion
withdrawn, 192 F.3d 1208 (9th Cir. 1999). The dissent,
however, noted that “there is real doubt whether the hybrid-
rights exception even exists” because “the Supreme Court
itself has never explicitly held that it exists.” Id. at 722–23
(Hawkins, J., dissenting). “[T]he paragraph in Smith
purporting to carve out a hybrid-rights exception is dicta,”
“the Supreme Court in Smith did not announce a different test
for hybrid-rights cases,” and “[e]ven the cases which the
Supreme Court cited as involving ‘hybrid rights’ did not
explicitly refer to or invoke strict scrutiny or a compelling
government interest test.” Id. at 723–24. In any case, that
opinion discussing the appropriate hybrid rights test in our
Circuit was withdrawn upon granting rehearing en banc, and
the en banc court did not address the hybrid rights issue. See
50 PARENTS FOR PRIVACY V. BARR
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,
1148 (9th Cir. 2000) (en banc) (noting that “we postpone . . .
application of [Smith’s] newly developed hybrid rights
doctrine”) (O’Scannlain, J., concurring).
Moreover, Miller v. Reed, the Ninth Circuit case that
Plaintiffs cite as the basis for the hybrid rights exception in
our Circuit, was decided after the panel opinion in Thomas
was issued, but before the three-judge opinion was withdrawn
upon granting rehearing en banc. See Miller v. Reed,
176 F.3d 1202 (9th Cir. 1999). Thus, no weight can be given
to Miller’s citation to the Thomas panel opinion for the
suggestion that the hybrid rights exception has been
established in our Circuit. See id. at 1207 (“[W]e recently
held that, to assert a hybrid-rights claim, ‘a free exercise
plaintiff must make out a “colorable claim” that a companion
right has been violated—that is, a “fair probability” or a
“likelihood,” but not a certitude, of success on the merits.’”
(quoting Thomas, 165 F.3d at 703, 707)). There is therefore
no binding Ninth Circuit authority deciding the issue of
whether the hybrid rights exception exists and requires strict
scrutiny.
Nonetheless, we need not resolve that question now,
because even if a hybrid rights exception does exist, it would
not apply in this case. For the reasons discussed in the
Thomas panel opinion, alleging multiple failing constitutional
claims that do not have a likelihood of success on the merits
cannot be enough to invoke a hybrid rights exception and
require strict scrutiny. See Thomas, 165 F.3d at 703–07; cf.
id. at 705 (“[A] plaintiff invoking Smith’s hybrid exception
must make out a ‘colorable claim’ that a companion right has
been infringed.”); Miller, 176 F.3d at 1207–08 (collecting
cases and noting that “[o]ther circuits have adopted . . .
PARENTS FOR PRIVACY V. BARR 51
predicates for a hybrid-rights claim” that are “similar or more
stringent” than the standard adopted in Thomas, and holding
that “a plaintiff does not allege a hybrid-rights claim entitled
to strict scrutiny analysis merely by combining a free exercise
claim with an utterly meritless claim of the violation of
another alleged fundamental right or a claim of an alleged
violation of a non-fundamental or non-existent right”). As
explained earlier in this opinion, Plaintiffs have not
established colorable companion claims—they have not
shown even a likelihood of success, which is why their claims
were all dismissed with prejudice. Thus, even if the hybrid
rights exception does exist, it would not apply to require strict
scrutiny in this case. Alternatively, if the hybrid rights
exception does not actually exist, then, of course, it cannot
apply to this case to require strict scrutiny of Plaintiffs’
purported hybrid claims. Cf. Leebaert v. Harrington,
332 F.3d 134, 143 (2d Cir. 2003) (“Several circuits have
stated that Smith mandates stricter scrutiny for hybrid
situations than for a free exercise claim standing alone, but,
as far as we are able to tell, no circuit has yet actually applied
strict scrutiny based on this theory.”); Catholic Charities of
Sacramento, Inc. v. Superior Court, 85 P.3d 67, 88 (Cal.
2004) (explaining that a rule requiring only a “colorable” and
not an “ultimately meritorious” companion claim would not
make sense because it would allow the hybrid exception to
swallow the Smith rule, and noting that the California
Supreme Court was “aware of no decision in which a federal
court has actually relied solely on the hybrid rights theory to
justify applying strict scrutiny to a free exercise claim”).
In sum, whether the hybrid rights exception exists and
requires at least a colorable companion claim, or whether it
does not really exist at all—an issue that we do not resolve
here—Plaintiffs’ argument that the hybrid rights exception
52 PARENTS FOR PRIVACY V. BARR
requires that we apply strict scrutiny to their free exercise
claim fails. Because strict scrutiny does not apply, we also
need not address Plaintiffs’ arguments about narrow tailoring.
Instead, we review the Plan for a rational basis, which
means that the Plan must be upheld if it is rationally related
to a legitimate governmental purpose. See Wiesman,
794 F.3d at 1084; see also Selecky, 586 F.3d at 1127–28
(“Under the governing standard, ‘a law that is neutral and of
general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect
of burdening a particular religious practice.’” (quoting
Lukumi, 508 U.S. at 531)). “Plaintiffs ‘have the burden to
negate every conceivable basis which might support [the
Plan].’” Wiesman, 794 F.3d at 1084 (brackets omitted)
(quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315
(1993)). They fail to meet that burden, because they fail to
negate what the record makes clear: the Student Safety Plan
is rationally related to the legitimate purpose of protecting
student safety and well-being, and eliminating discrimination
on the basis of sex and transgender status. Cf. New York v.
Ferber, 458 U.S. 747, 756–57 (1982) (explaining that “a
State’s interest in ‘safeguarding the physical and
psychological well-being of a minor’ is ‘compelling’”
(quoting Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 607 (1982))); Goehring v. Brophy, 94 F.3d 1294, 1300
(9th Cir. 1996) (holding that a university had a compelling
interest in the “health and well-being of its students”).21
21
In their arguments regarding the compelling governmental interest
that would be required if we were to apply strict scrutiny, Plaintiffs argue
that “[t]he relevant government interest . . . cannot be a general interest in
prohibiting discrimination because that position has already been rejected
by the Supreme Court in Hurley v. Irish-American Gay, Lesbian &
PARENTS FOR PRIVACY V. BARR 53
Plaintiffs’ argument that the Supreme Court has also
recognized bodily privacy as a compelling interest is
unavailing, because it does not negate the fact that the
Student Safety Plan has a rational basis. Thus, we conclude
that because the Student Safety Plan is neutral, generally
applicable, and rationally related to a legitimate governmental
purpose, the Plan does not impermissibly burden Plaintiffs’
First Amendment free exercise rights. See Wiesman,
794 F.3d at 1085. And because Plaintiffs have not shown that
any new factual allegations could alter these conclusions
based on settled precedent, amendment would be futile.
Bisexual Group of Boston, 515 U.S. 557, 573 (1995).” But Hurley is
inapposite because that was a free speech case; the Supreme Court’s
suggestion in Hurley that a broad statutory objective of forbidding
discriminatory speech in public parades would be “fatal” because “[o]ur
tradition of free speech commands that a speaker who takes to the street
corner to express his views in this way should be free from interference by
the State based on the content of what he says” is hardly surprising or
controversial. See id. at 578–79. That statement in Hurley certainly does
not preclude the District here from asserting an interest in providing an
accommodating and safe school environment for transgender students and
assuring that they do not suffer the stigmatizing injury of discrimination
by being denied access to multi-user bathrooms that match their gender
identity. And in fact, the Supreme Court has recognized repeatedly that
the government has a compelling interest “of the highest order” in
“eliminating discrimination and assuring its citizens equal access to
publicly available goods and services.” Roberts v. U.S. Jaycees, 468 U.S.
609, 624 (1984); see also id. at 623, 628 (noting that “acts of invidious
discrimination in the distribution of publicly available goods, services, and
other advantages cause unique evils that government has a compelling
interest to prevent,” and holding that “Minnesota’s compelling interest in
eradicating discrimination against its female citizens justifies the impact
that application of the statute to the Jaycees may have on the male
members’ associational freedoms”).
54 PARENTS FOR PRIVACY V. BARR
For the foregoing reasons, we affirm the dismissal with
prejudice of Plaintiffs’ First Amendment free exercise claim.
V.
Finally, Plaintiffs argue that the district court erred in
failing to allow Plaintiffs leave to replead. Although
Plaintiffs correctly point out that leave to amend should be
liberally granted if the complaint can be saved by
amendment, Plaintiffs have not shown, either in their briefing
or at oral argument, how they could amend their complaint to
remedy the many legal deficiencies in their claims. Instead,
Plaintiffs simply argue that their complaint, as currently
alleged, is sufficient to state their claims because their claims
“were not conclusory; rather, they were extensive, well-
articulated statements of fact that clearly pleaded claims for
relief” and “exceeded both the Twombly and Iqbal standards.”
The problem with Plaintiffs’ complaint, however, is not
the sufficiency of their factual allegations. Rather, as we
have explained above, Plaintiffs’ legal theories fail.
Amending the complaint will not change, for example, the
extent of the rights that are protected by the Fourteenth
Amendment’s Due Process Clause. As a result, we affirm the
district court’s denial of leave to amend.22 Further
22
Because we affirm the dismissal with prejudice of Plaintiffs’
complaint, we do not reach the district court’s determination that
Plaintiffs’ requested relief—a court order requiring transgender students
to use single-user facilities or facilities that match their biological
sex—would itself violate Title IX because it “would punish transgender
students for their gender nonconformity and constitute a form of
[impermissible] sex-stereotyping.” Parents for Privacy, 326 F. Supp. 3d
at 1106 (citing Whitaker ex rel. Whitaker, 858 F.3d at 1048–50.
PARENTS FOR PRIVACY V. BARR 55
amendment would simply be a futile exercise. See V.V.V. &
Sons Edible Oils. Ltd., 946 F.3d at 547.
VI.
In summary, we hold that Dallas School District No. 2’s
carefully-crafted Student Safety Plan seeks to avoid
discrimination and ensure the safety and well-being of
transgender students; it does not violate Title IX or any of
Plaintiffs’ cognizable constitutional rights. A policy that
allows transgender students to use school bathroom and
locker facilities that match their self-identified gender in the
same manner that cisgender students utilize those facilities
does not infringe Fourteenth Amendment privacy or parental
rights or First Amendment free exercise rights, nor does it
create actionable sex harassment under Title IX.
Accordingly, Plaintiffs have failed to state a federal claim
upon which relief can be granted. The judgment of the
district court is
AFFIRMED.