The US Supreme Court, which currently has a 6-3 conservative majority, declined on Monday to take up an appeal from parents in Oregon who want to prevent transgender students from using locker rooms and bathrooms of the gender with which they identify, rather than their sex assigned at birth.

Oregon parents of children who attend a high school in the State filed a federal lawsuit over the district school’s policy over allowing a trans male student to use the boys locker room and bathroom in 2017, which reflected similarities in a civil action in Illinois which did not survive legal challenge. 

This lawsuit was filed in Portland due to a decision that was made by the Dallas district school and was challenged because it allowed Elliot Yoder, who was 16 at the time the suit was filed, to use the boys’ facilities. The American Civil Liberties Union of Oregon and Basic Rights held a news conference decrying the lawsuit and the ACLU said it would likely intervene in the Oregon case as it did in Illinois.

Oregon’s legal defender for American Liberties Civil Union Mat dos Santos said, “the case targets transgender youth for simply existing and seeking an education and this lawsuit is senseless and cruel but it is not a meaningful threat to the right of transgender students in Oregon.”

 Attorney for the three parents of former Dallas district school students, Herb Grey disagreed with the ACLU and said the district’s policy to allow Yoder into such private spaces violated the civil rights of the majority of the students who do not identify as transgender. Boys using the locker room and bathroom feel embarrassed and ashamed to have to disrobe in the presence of another student who was biologically female, he said. 

“The key to this whole thing is not just the privacy and the rights of just one student. It’s the rights of all the students and their parents. You can’t interpret Federal law and State law and impose it on everyone else and say you’re accommodating everyone — because you’re not accommodating everyone.”

Initially Yoder would use the gender neutral toilets that the school had to change before gym. However, these were two floors away from the locker room, so he asked to use the boys facilities and other students noticed when he left to change.

The lawsuit names the Oregon Department of Education and Oregon Governor Kate Brown because of guidelines issued by the state in 2016, outlining what districts should do to accommodate transgender students. The guidelines are not the law but are based on numerous court opinions on transgender rights that have interpreted Title IX protections as extending to transgender students.

It also named the US Department of Education and US Secretary of Education Betsy DeVos, although the Trump administration rolled back an Obama-era directive on transgender inclusion. 

 Dallas, a town in a rural agricultural area 60 miles (96.56 kilometers) south of Portland, has a population of about 15,000 people.

The high school there first grabbed headlines in 2015 when the district sent a letter to parents saying it was accommodating one transgender male student by allowing him to use the boys locker rooms and bathrooms. The letter generated an uproar and parents packed into a school board meeting.

At that time Yoder was 14 and he attended the meeting where he publicly identified himself as the transgender student in the letter during remarks before the board. Even with the school policy in place, he’s had trouble getting up the courage to use the boys bathroom and often waits to make sure it’s empty before going in, he said.

“What’s really troubling and what really scares me is this lawsuit,” he said. “When a transgender student is using the facilities that match their gender identity, the only person’s privacy that is being interrupted is their own because of everyone else’s concerns about it.”

Two years later after coming out, Yoder is living with an adoptive family that supports his identity and has a girlfriend.

The court did not give a reason for turning away the appeal, but similar lawsuits have been dismissed by lower courts across the country. The decision to decline the case is a big win for transgender students.

 Here in Australia our trans and gender diverse students are covered by State and Federal governments under Gender Affirmation support plans. Meaning that schools must work with students in affirming their gender identity to prepare and implement a student support plan 

A plan should be developed in consultation with the student and their parents or carers, where possible, and should be reviewed periodically to ensure that it reflects the needs of the student at the different stages of their transition, and at the different stages of their education.

This is just one of the many ways schools need to support children in Victoria and New South Wales.

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