Citations
- 326 F. Supp. 3d 1075
Full opinion text
HERNÁNDEZ, District Judge:
The Court must determine whether Oregon public schools may allow transgender students to use restrooms, locker rooms, and showers that match their gender identity rather than their biological sex assigned at birth. Dallas High School, located in Dallas, Oregon, and under the control of Defendant Dallas School District No. 2 ("District"), adopted and implemented the Student Safety Plan ("Plan") together with underlying policies allowing transgender students to use restrooms, locker rooms, and showers that match their gender identity. Plaintiff Parents for Privacy is composed of current and former Dallas High School students ("Student Plaintiffs") and their parents ("Parent Plaintiffs"). Plaintiff Lindsay Golly formerly attended Dallas High School during the 2015-2016 school year while the Plan was in place. Compl. ¶ 16, ECF 1. Plaintiffs Kris Golly and Jon Golly are her parents as well as the parents of their son A.G., an eighth-grade student who will soon attend Dallas High School. Compl. ¶ 16. Plaintiff Melissa Gregory is a parent of T.F., a student at Dallas high school. Id. at ¶ 17.
Plaintiffs challenge the legality of the plan, seek to enjoin District from enforcing it, and request that the Court order District to require students to only use the restrooms, locker rooms, and showers that match their biological sex. Additionally, Plaintiffs seek to enjoin the U.S. Department of Education ("USDOE"), U.S. Department of Justice ("USDOJ"), and their respective secretaries (collectively "Federal Defendants") from taking any action based on USDOE's alleged rule redefining the word "sex" as used in Title IX to include gender identity. District and Federal Defendants have separately filed motions to dismiss Plaintiffs' claims.
Moreover, Basic Rights Oregon ("BRO"), a non-profit organization dedicated to protecting the rights of Oregon's LGBTQ community, filed a motion to intervene as a defendant in this case. See Mot. to Intervene, ECF. 24. The Court granted BRO's motion to intervene and BRO filed its own motion to dismiss. See BRO's Mot. to Dismiss, ECF 30.
Lastly, the Oregon Department of Education ("ORDOE") and Governor Kate Brown (collectively "State") were originally named parties in this lawsuit. Upon the parties' stipulation, Plaintiffs' claims against those defendants were dismissed. See Stip. Notice of Dismissal, ECF 11. State, however, moved to rejoin this litigation as amicus curiae. See Mot. for Leave to Appear as Amicus Curiae, ECF 50. The Court granted that motion, and State filed its amicus brief in support of District's Motion to Dismiss. See Amicus Br., ECF 50-1. In sum, there are three fully-briefed motions to dismiss before the Court. For the reasons discussed below, the motions are GRANTED and this case is DISMISSED.
Plaintiffs bring the following eight claims for relief:
First Claim: (against Federal Defendants) Violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq. Compl. ¶¶ 136-185.
Second Claim: (against District and Federal Defendants) Violation of the Fundamental Right to Privacy. Id. at ¶¶ 186-206.
Third Claim: (against District and Federal Defendants) Violation of the Parents' Fundamental Right to Direct the Education and Upbringing of Their Children. Id. at ¶¶ 207-220.
Fourth Claim: (against District) Violation of Title IX, 20 U.S.C. § 1681 et seq. Id. at ¶¶ 221-247.
Fifth Claim: (against Federal Defendants): Violation of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. Id. at ¶¶ 248-255.
Sixth Claim: (against District and Federal Defendants): Violation of the First Amendment's Guarantee of Free Exercise of Religion. Id. at ¶¶ 256-264.
Seventh Claim: (against District) Public Accommodation Discrimination, Or. Rev. Stat. ("O.R.S.") §§ 659A.400, 659A.885. Id. at ¶¶ 265-271.
Eighth Claim: (against District) Discrimination in Education, O.R.S. 659.850. Id. at ¶¶ 272-277.
Plaintiffs and District conferred and consent to the dismissal of some of Plaintiffs' claims. First, they agree that Plaintiff Lindsay Golly should be dismissed because she does not have standing. Second, the parties agree that Plaintiff Nicole Lillie should be dismissed; while her name is in the case caption, she is not included in any of the Complaint's allegations. Third, Plaintiffs consent to the dismissal of their request for compensatory damages as to Plaintiffs A.G. and T.F. Furthermore, Plaintiffs concede that their third claim for relief-violation of the right to direct the education and upbringing of one's children-should be dismissed to the extent that it is based on the District's alleged liability for the LaCreole Middle School special needs assessment. See Pl.'s Resp. to District's Mot. to Dismiss 2, ECF 41.
BACKGROUND
I. Definitions As a preliminary matter, the Court finds it necessary to explain its use of several relevant terms. In a recent decision, the Third Circuit aptly summarized the same set of terms the Court uses throughout this Opinion & Order. See Doe v. Boyertown Area Sch. Dist. , 893 F.3d 179, 183-84 (3d Cir. 2018). The Court adopts the following definitions from the Third Circuit:
"Sex" is defined as the "anatomical and physiological processes that lead to or denote male or female." Typically, sex is determined at birth based on the appearance of external genitalia.
"Gender" is a "broader societal construct" that encompasses how a "society defines what male or female is within a certain cultural context." A person's gender identity is their subjective, deep-core sense of self as being a particular gender.... "[C]isgender" refers to a person who identifies with the sex that person was determined to have at birth. The term "transgender" refers to a person whose gender identity does not align with the sex that person was determined to have at birth. A transgender boy is therefore a person who has a lasting, persistent male gender identity, though that person's sex was determined to be female at birth. A transgender girl is a person who has a lasting, persistent female gender identity though that person's sex was determined to be male at birth.
Id. (citations omitted).
II. Dallas School District and the Student Safety Plan
Dallas High School is located in Dallas, Oregon in Polk County. Compl. ¶ 19. Student A was a twelfth grade student at Dallas High School. Id. at ¶ 76. Student A was born and remains biologically female. Id. at ¶ 77. Before September 2015, Student A used the girls' restrooms, locker rooms, and showers (collectively "facilities"). Id. at ¶ 77. In September 2015, Student A publicly identified as a boy and asked District to allow him to use the boys' facilities. Id. at ¶ 78-79.
In November 2015, District responded to Student A's request by implementing the Student Safety Plan entitled "Transgender Student Access to Locker Room." Compl. Ex. A, at 1. The Plan permits Student A to use Dallas High School's locker rooms, restrooms, and showers consistent with his gender identity. Compl. ¶ 75, Ex. A, at 1. The preamble to the Plan states:
All students have rights for attendance at public schools, and we have to follow the laws which protect those students['] rights. This safety plan has been created to support a transgender male expressing the right to access the boy's locker room at Dallas High School. Following are targeted areas of concern and the procedures or actions aimed to support all students in this transition.
Compl. Ex. A, at 1. At that time, Student A had not expressed which bathroom he felt comfortable using. Id. at ¶ 79. Accordingly, the Plan states that Student A "can use any of the bathrooms in the building to which he identifies sexually." Compl. Ex. A, at 2.
Furthermore, the Plan, as referred to by the parties, also encompasses several previously established District policies. Compl. Exs. B-G. District's nondiscrimination policy provides that District "prohibits discrimination and harassment on any basis protected by law, including ... an individual[']s perceived or actual ... sex" or "sexual orientation." Compl. Ex. B, at 1. Sexual orientation under the policy "means an individual's actual or perceived ... gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth." Id. Likewise, District has a policy entitled "Equal Education Opportunity" providing that "[e]very student of the district will be given equal educational opportunities regardless of ... sex" or "sexual orientation." Compl. Ex. C. The policy explains:
Further, no student will be excluded from participating in, denied the benefits of, or subjected to discrimination under any educational program or activity conducted by the district. The district will treat its students without discrimination on the basis of sex as this pertains to course offerings, athletics, counseling, employment assistance and extracurricular activities.
Id.
In accordance with the Plan, Student A used the boys' locker rooms, showers, and restrooms at Dallas High school. Compl. ¶ 79. Other male students, including Student Plaintiffs, have used school facilities at the same time as Student A. Id. at ¶ 79. Specifically, Student A has used the boys' locker room and showers and has changed clothes while male students were present. Id. at ¶ 82. Plaintiffs allege that male students at Dallas High school experience "embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress produced by using the restroom with students of the opposite sex[.]" Id. at ¶ 83. The alleged risks posed to those students persist despite the presence of privacy stalls in the bathrooms because "there are large gaps above and below the stall doors, and gaps along the sides of the doors" through which "another student could see through even inadvertently." Id. Therefore, Plaintiffs maintain that Student Plaintiffs "must risk exposing themselves to the opposite sex every time they use the restroom." Id. at ¶ 83. Consequently, Student Plaintiffs and other students use the restroom as little as possible and "risk tardiness by hurrying to distant facilities of the school, during short 5-minute passing periods, to try and find a restroom not likely to be used by a student of the opposite biological sex." Id. at ¶ 85.
Student and Parent Plaintiffs expressed their concerns about the Plan to Dallas High School's principal who informed them that all facilities may be used by any student regardless of biological sex. Id. at ¶ 87. The principal also told Parent Plaintiffs that their students could use the unisex staff lounge which has no shower. Id. at ¶ 91. Dallas School Board meetings were held on December 14, 2015, January 19, 2016, and February 11, 2016. Id. at ¶ 93. At those meetings, District supported the Plan over Plaintiffs' objections and those of other parents and students. Id.
II. Federal Defendants' Administrative Actions
Plaintiffs allege that Federal Defendants have exercised their authority to promulgate, administer, and enforce a new legislative rule redefining "sex" within the meaning of Title IX to include gender identity and prohibiting school districts from providing sex-specific facilities. Id. at ¶¶ 26-30, 32-39, 49-73. Federal Defendants' new legislative rule ("Rule") as alleged in the Complaint is composed of a series of Federal Guidelines promulgated between April 2014 and May 2016, including:
- USDOE, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (Apr. 2014). Compl. Ex. H [hereinafter "Q & A on Sexual Violence"].
- USDOE, Office for Civil Rights, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities , (Dec. 2014). Compl. Ex. I [hereinafter "Q & A on Single-Sex Activities"].
- USDOE, Office of Civil Rights, Title IX Resource Guide. (Apr. 2015). Compl. Ex. J.
- USDOJ, Civil Rights Division, USDOE, Office for Civil Rights, Dear Colleague Letter on Transgender Students (May 13, 2016). Compl. Ex. K [hereinafter "May 2016 Dear Colleague Letter"].
First, in April 2014, USDOE published the Q & A on Sexual Violence which provides: "Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity[.]" Compl. Ex. H at 12. That guidance was withdrawn in September 2017, before this lawsuit was filed. See U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf.
Second, in December 2014, USDOE published the Q & A on Single-Sex Classes, providing that:
All students, including transgender students and students who do not conform to sex stereotypes are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of planning, implementation, enrollment, operation, and evaluation of single-sex classes.
Compl. Ex. I, at 30.
Third, in April 2015, USDOE published the Title IX Resource Guide which reiterates that Title IX's prohibition of sex discrimination includes gender identity. Compl. Ex. J, at 5. Specifically, the prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity. Id. at 5-6. "Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a recipient's obligations." Id. at 21.
The fourth challenged document is the May 2016 Dear Colleague Letter jointly issued by the USDOJ and USDOE. Compl. Ex. K. The May 2016 Dear Colleague Letter repeated that Title IX's sex-discrimination prohibition "encompasses discrimination based on a student's gender identity, including discrimination based on a student's transgender status." Id. at 2. Federal Defendants characterized this letter as "significant guidance" that "does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations." Id. at 2. Most importantly, this document provides specific guidance on transgender students' access to sex-segregated activities and facilities:
3. Sex-Segregated Activities and Facilities
Title IX's implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.
Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.
Athletics. Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others' discomfort with transgender students. Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students' participation on the competitive fairness or physical safety of the sport.
Id. at 4.
On February 22, 2017, the USDOJ and USDOE published a second dear colleague letter withdrawing the guidance provided in their May 2016 Dear Colleague Letter. See U.S. Dep'ts of Educ. & Justice, Dear Colleague Letter (Feb. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf [hereinafter "February 2017 Dear Colleague Letter"]. The February 2017 Dear Colleague Letter began: "The purpose of this guidance is to inform you that the Department of Justice and the Department of Education are withdrawing the statements of policy and guidance reflected" in the May 2016 Dear Colleague Letter. Id. The letter explained that prior guidance's interpretation of "on the basis of sex" in Title IX to include gender identity has "given rise to significant litigation regarding school restrooms and locker rooms." Id.
The February 2017 Dear Colleague Letter did not state that the prior guidance was unlawful, nor did Federal Defendants replace the prior guidance with new guidance. Rather, the letter stated that, in light of litigation on the issue producing differing results, "there must be due regard for the primary role of the States and local school districts in establishing education policy." Id. "In these circumstances, the [USDOE and USDOJ] have decided to withdraw and rescind the above-reference guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them." Id. ; see also Compl. Ex. N (USDOE instructions to field offices stating that in light of the February 2017 Dear Colleague Letter and other litigation developments, the USDOE should not rely on the May 2016 Dear Colleague letter when analyzing Title IX discrimination claims).
STANDARDS
On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n , 629 F.3d 992, 998 (9th Cir. 2010). "[F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The court, however, need "not assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Id. "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do ...." Id. at 555, 127 S.Ct. 1955.
DISCUSSION
As outlined above, Plaintiffs allege eight claims for relief which the Court has grouped together as follows: (I) APA; (II) the right to privacy; (III) Title IX; (IV) Oregon state law; (V) parents' rights to direct the education and upbringing of their children; and (VI) First Amendment and RFRA. The Court will discuss each topic in turn.
I. APA
Plaintiffs' first claim for relief alleges that Federal Defendants violated by the APA through promulgating and enforcing "a new legislative rule that redefines the term 'sex' in Title IX and its accompanying regulations to mean, or at least include, 'gender identity.' " Compl. ¶ 137. They argue that the May 2016 Dear Colleague Letter demonstrates that Federal Defendants will investigate and enforce Title IX against school districts that do not permit transgender students to use restrooms, locker rooms and showers consistent with their gender identity. Id. at ¶¶ 140-41. Plaintiffs contend that Federal Defendants' administrative actions are in excess of legal authority, arbitrary and capricious, contrary to the U.S. Constitution, and done without observance of required administrative procedures. Id. at ¶ 145 (citing 5 U.S.C. § 706(2)(A)-(D) ).
In response, Federal Defendants move to dismiss Plaintiffs' APA claim on the ground that Plaintiffs lack standing. Two of the four guidance documents that comprise the challenged Rule were withdrawn before this lawsuit commenced. Federal Defendants claim that Plaintiffs cannot show that they suffered any injury as a result of the Rule or that Plaintiffs' alleged injuries would be redressed by the relief that they seek from Federal Defendants. The May 2016 Dear Colleague Letter-the only guidance specifically addressing transgender students' use of school facilities-was expressly withdrawn by the February 2017 Dear Colleague Letter. Federal Defendants point to District's Plan as the sole source of Plaintiffs' alleged injuries. In other words, withdrawal of Federal Defendants' Rule would neither compel District to rescind its Plan nor require students at Dallas High School to use facilities matching their biological sex.
To have Article III standing, a plaintiff must show that, (1) it suffered an "injury in fact," (2) arising out of the defendant's conduct, and (3) "it must be 'likely,' as opposed to 'speculative,' that the injury will be redressed by a favorable decision." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).
A. Injury
Plaintiffs allege that they have "suffered a legal wrong as a direct result of USDOE's actions, because Plaintiffs' constitutional and statutory rights were and continue to be violated by the Student Safety Plan, which is the direct result of USDOE's enforcement of its new rule." Compl. ¶ 144. Federal Defendants do not challenge the injury requirement for standing. Instead, they argue that the alleged injury is solely attributable to District's Plan and that Plaintiffs are unable to establish either causation or redressability. As discussed below, however, the Court finds that Plaintiffs have not plausibly alleged their remaining claims based on District's Plan. Accordingly, because those dismissed claims form the basis for Plaintiff's alleged injury, Plaintiffs' APA claim falls with them. The Court will nevertheless determine whether Plaintiffs have satisfied the remaining elements of standing.
B. Causation
Assuming that Plaintiffs have plausibly alleged an injury-in-fact, Federal Defendants argue that Plaintiffs' injuries are not fairly traceable to the challenged administrative actions. Federal Defendants point out that four of the five claims that Plaintiffs allege against them do not mention any federal action. See Fed. Defs.' Mot. to Dismiss 8, ECF 49. Plaintiffs' second, third, fifth, and sixth claims for relief only allege actions taken by District. Plaintiffs' sole causal connection lies in Federal Defendants' alleged influence on District's decision to enact and enforce the Plan. Particularly, Plaintiffs allege that Federal Defendants' enforcement of Title IX against other school districts based on the Rule caused District to enact the Plan.
Causation requires showing that an injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Bennett v. Spear , 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). An indirect injury, however, "does not in itself preclude standing." Warth v. Seldin , 422 U.S. 490, 504, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "Causation may be found even if there are multiple links in the chain connecting the defendant's unlawful conduct to the plaintiff's injury, and there's no requirement that the defendant's conduct comprise the last link in the chain." Mendia v. Garcia , 768 F.3d 1009, 1012 (9th Cir. 2014) (citing Bennett , 520 U.S. at 167, 117 S.Ct. 1154 ). "[W]hat matters in not the 'length of the chain of causation,' but rather the 'plausibility of the links that comprise the chain[.]' " Nat'l Audubon Soc'y, Inc. v. Davis , 307 F.3d 835, 849 (9th Cir. 2002) (quoting Autolog Corp. v. Regan , 731 F.2d 25, 31 (D.C. Cir. 1984) ).
District's Plan was enacted in November 2015. At that time, of the four challenged guidance documents comprising the Rule, the Q & A on Sexual Violence, the Q & A on Single-Sex Activities, and the Title IX Resource Guide were in effect. All three of those documents state that USDOE interprets Title IX as prohibiting discrimination on the basis of gender identity. None of those documents, however, state that Title IX requires school districts to permit transgender students to use school facilities consistent with their gender-identity. Only the May 2016 Dear Colleague Letter-issued six months after the Plan was made effective-requires school districts to take such action. Compl. Ex. K, at 4. Plaintiffs allege that Federal Defendants "have enforced the Rule through public investigations, findings, and threats to revoke millions of dollars in federal funding from several school districts because they provided sex-specific private facilities." Compl. ¶ 63. In particular, Plaintiffs point to USDOE's actions against Township High School District 211 ("District 211") in Palantine, Illinois. Id. at ¶ 64. There, in November 2015, USDOE issued a letter stating that District 211 violated Title IX by not allowing a transgender female to use the girls' locker room. Id. at ¶¶ 65-66. District 211 and USDOE entered into an agreement allowing transgender student access to the disputed facilities. Compl. ¶ 67, Ex. M. Likewise, the USDOJ filed a lawsuit in May 2016 against North Carolina based on the University of North Carolina's enforcement of sex-specific private facilities. Compl. ¶¶ 69-71.
In response to Federal Defendants' actions, students, parents, and interest groups similar to Plaintiffs in this case, joined together and filed federal lawsuits asserting substantially similar claims. See Fed. Defs.' Mot. to Dismiss 4-5 (collecting cases). Students and parents involved in the District 211 case filed their own lawsuit alleging claims substantially identical to those asserted in this case. That particular case will be discussed in greater detail below.
In turn, Federal Defendants issued the February 2017 Dear Colleague Letter. The purpose of the letter was, in part, to inform the public that Federal Defendants were "withdrawing the statements of policy and guidance reflected in" the May 2016 Dear Colleague Letter. U.S. Dep'ts of Educ. & Justice, Dear Colleague Letter (Feb. 22, 2017). The February 2017 Dear Colleague Letter states that its interpretation that "on the basis of sex" in Title IX "requires access to sex-segregated facilities based on gender identity" has "given rise to significant litigation regarding school restrooms and locker rooms." Id. The letter continues by acknowledging then-existing conflicting judicial rulings on the issue among federal courts. Based on those circumstances, the letter states that Federal Defendants "have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them." Id. Furthermore, Plaintiffs attach to their complaint another letter from USDOE to its field offices dated June 6, 2017. Compl. Ex. N. Similar to the February 2017 Dear Colleague Letter, this letter informs regional directors of USDOE's Office for Civil Rights that they "may not rely on the policy set forth in the May 2016 Dear Colleague Letter." Id. at 1.
In response to the February 2017 Dear Colleague Letter, several lawsuits challenging Federal Defendants' Rule were voluntarily dismissed. See Fed. Defs.' Mot. to Dismiss 5 (collecting cases). In addition, the Supreme Court previously granted certiorari on the question of whether courts should defer to the May 2016 Dear Colleague Letter. See Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm , --- U.S. ----, 137 S. Ct. 369, 196 L.Ed.2d 283 (2016) (mem.). Again, upon issuance of the February 2017 Dear Colleague Letter, the Supreme Court vacated the Fourth Circuit's decision in that case and remanded for a determination of whether the issue had been mooted. Gloucester County School Bd. v. G. G. ex rel. Grimm , --- U.S. ----, 137 S.Ct. 1239, 197 L.Ed.2d 460 (2017) (mem.). Upon remand, the district court determined that the transgender student plaintiff's Title IX claim was not mooted and was sufficiently pled regardless of Federal Defendants' administrative actions. Grimm v. Gloucester Cty. Sch. Bd. , 302 F.Supp.3d 730, 748 (E.D. Va. 2018).
Based on the Complaint and its attached exhibits, Plaintiffs have not plausibly alleged a causal link between Federal Defendants' challenged Rule and the alleged injury. Despite having full knowledge of the events described above, Plaintiffs nevertheless filed this lawsuit on November 13, 2017, including allegations against Federal Defendants based on their rescinded interpretation of Title IX. District's Plan was enacted in November 2015, well before the May 2016 Dear Colleague letter was issued. Similarly, most of Federal Defendants' enforcement actions alleged in the complaint occurred after the Plan was enacted. Other than USDOE's letter of a Title IX violation to District 211, the remaining enforcement allegations pertain to actions taken after the Plan's enactment. Therefore those enforcement actions cannot support Plaintiff's alleged causal link.
As to the District 211 action, USDOE issued its violation letter on November 2, 2015, and it entered into an agreement with District 211 on December 2, 2015. Compl. Exs. L & M. While it is possible that USDOE's letter issued to District 211 influenced the District's decision to enact the Plan that same month, that conclusion is merely speculative and fails to plausibly establish causation. Plaintiffs "must offer facts showing that the government's unlawful conduct is at least a substantial factor motivating the third parties' actions" and they must "make that showing without relying on 'speculation' or 'guesswork' about the third parties' motivations." Mendia , 768 F.3d at 1013 (internal quotation marks and citations omitted).
The sequence of events in this case shows that District's Plan was enacted in response to Student A's accommodation request, not Federal Defendants' actions. Compl. ¶ 78-82. Upon first receiving Student A's request in September 2015, District initially provided an accommodation by allowing him to access single-use facilities. Id. at ¶¶ 78-79. District then formalized its response to Student A by issuing the Student Safety Plan in November 2015. Compl. ¶ 82. The Plan begins by stating that "[a]ll students have rights for attendance at public schools, and we have to follow the laws which protect those student rights." Compl. Ex. A, at 1. Nothing in the Plan states that District was motivated by external litigation or enforcement of Title IX as a basis for its action. Rather, District lists elsewhere that its nondiscrimination policies comply with several Oregon state laws as well as over a dozen federal laws, including Title IX. See, e.g. , Compl. Ex. B, at 2; Ex. D at 3. It would be purely speculative to conclude that Federal Defendants' enforcement actions-as opposed to Student A's request or the requirements of many other state and federal laws-substantially motivated District to enact its Plan. There are no allegations based on District's statements explaining why they enacted the Plan. Plaintiffs simply allege that Federal Defendants' enforcement actions caused District to implement the Plan. However, in light of the documents attached to the complaint, the Court is no longer required to accept that allegation as true.
Accordingly, the Court concludes that Plaintiffs have not alleged that their purported injuries are fairly traceable to Federal Defendants' actions. Therefore, Plaintiffs have not sufficiently pleaded causation sufficient to establish Article III standing.
C. Redressability
Lastly, assuming Plaintiffs sufficiently alleged injury and causation, they must still establish standing's third requirement-redressability. Generally, a plaintiff must show that its requested relief will redress its alleged injury. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
When ... a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else , much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction-and perhaps on the response of others as well.
Lujan , 504 U.S at 562, 112 S.Ct. 2130. The concept of redressability "has been ingrained in our jurisprudence from the beginning," the point of which is to determine "whether a plaintiff 'personally would benefit in a tangible way from the court's intervention.' " Steel Co. , 523 U.S. at 103 n.5, 118 S.Ct. 1003 (quoting Warth v. Seldin , 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). The Supreme Court has found that there is no standing for lack of redressability where "the injury to the plaintiff by the defendant was indirect (e.g., dependent on the action of a third party)." Id. at 125, 118 S.Ct. 1003.
In this case, Plaintiffs seek relief including a Court order declaring the challenged guidance documents unlawful and directing Federal Defendants to remove those documents from their public websites. Compl. ¶ 147, p. 63. Plaintiffs also seek to enjoin Federal Defendants from "enforcing Title IX in a manner that requires District to give any students the right of entry to, and use of, the private facilities (including locker rooms, showers and restrooms) designated for students of the opposite sex." Id. at ¶147, p. 63.
Plaintiffs have not established that obtaining the relief they seek against Federal Defendants will redress their alleged injury. A favorable ruling for Plaintiff would result in the rescission of the Rule and would enjoin Federal Defendants from taking enforcement actions against District described above. This relief would not, however, redress Plaintiffs' alleged injury. District adopted its plan independent of any action by Federal Defendants and an order invalidating the Rule would not result in the Plan's withdrawal. In other words, District's plan would continue and Plaintiffs' injury would persist notwithstanding granting Plaintiffs' relief against Federal Defendants. Plaintiffs' alleged legal wrongs based on their other claims would remain unaffected by a Court order invalidating the Rule and enjoining Federal Defendants.
Furthermore, as discussed above, District cites to over two dozen state and federal laws as bases for its non-discrimination policy underlying the Student Safety Plan. See Compl. Ex. B. Invalidation of Rule as to Title IX would not affect District's obligations under other state and federal laws. In any event, Federal Defendants have unequivocally withdrawn the only guidance on the issue of transgender student access to school facilities and they have forbidden reliance on that guidance. See Feb. 2017 Dear Colleague Letter. The February 2017 Dear Colleague Letter states that Federal Defendants believe "there must be due regard for the primary role of the States and local school districts in establishing educational policy." Id. In sum, District retains the discretion to continue enforcing the Plan even if the Court granted Plaintiffs the relief they sought against Federal Defendants. Therefore, Plaintiffs have not demonstrated that their requested relief as to Federal Defendants will redress their alleged injury.
II. The Right to Privacy
Next, Plaintiffs allege that District and Federal Defendants violated Parent and Student Plaintiffs' right to privacy guaranteed by the U.S. Constitution. While there is no generalized right to privacy, the Supreme Court has recognized a privacy right against certain kinds of governmental intrusions under the Due Process Clause of the Fourteenth Amendment. Katz v. United States , 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; Roe v. Wade , 410 U.S. 113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). "[O]nly personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy." Roe , 410 U.S. at 152, 93 S.Ct. 705 (quoting Palko v. Connecticut , 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937) ). The 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 sacrifices." Washington v. Glucksberg , 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997) (internal quotation marks and citations omitted). The law further requires "a 'careful description' of the asserted fundamental liberty interest." Id. Courts are, however, "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).
A. Fundamental Right
Plaintiffs formulate their privacy right as "a fundamental right to bodily privacy" which 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." Compl. ¶ 188. Reformulated elsewhere in the Complaint, Plaintiffs argue:
The ability to be clothed in the presence of the opposite biological sex, along with the freedom to use the restroom, locker room and shower away from the presence of the opposite biological sex, is fundamental to most people's sense of self-respect and personal dignity, including plaintiffs', who should be free from State-compelled risk of exposure of their bodies, or their intimate activities.
Id. at ¶ 199.
District and BRO argue that Plaintiffs' asserted fundamental right is overbroad and unrecognized by any federal court. Under substantially similar circumstances, a district court considered a nearly identically-phrased fundamental right. See Students v. U.S. Dep't of Educ. , No. 16-CV-4945, 2016 WL 6134121, at *22 (N.D. Ill. Oct. 18, 2016) [hereinafter " Students & Parents R & R "], report and recommendation adopted , Students and Parents for Privacy v. U.S. Dep't of Educ. , 2017 WL 6629520 (N.D. Ill. Dec. 29, 2017) [hereinafter " Students & Parents "]. That court also considered a second restatement of the right at issue: "does letting a biological male use the girls' locker room and restrooms, and so subjecting Girl Plaintiffs to the risk of compelled exposure of their bodies to the opposite biological sex, violate Girl Plaintiffs' constitutional right to privacy?" Students & Parents R & R , 2016 WL 6134121, at *23. The district court found the latter formation more apt than the one from the complaint; it then posited its own version of the issue: "do high school students have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs?" Id. The Court adopts the district court's formation in Students & Parents , which is a more specific and complete statement of Plaintiffs' asserted privacy right in this case.
Equipped with this description of the asserted right, the Court must determine whether high school students have a fundamental right not to share restrooms or locker rooms with transgender students. Defendants direct the Court to several cases similar to this one in which courts have rejected Plaintiffs' purported privacy interest in favor of transgender students' access to school facilities. The following decisions are not binding upon this Court; however, in the absence of binding authority from the Ninth Circuit, the Court relies on these opinions for their persuasiveness. Defendants primarily rely upon Students & Parents , 2017 WL 6629520. As discussed above, the court in Students & Parents concluded that high school students did not have a fundamental right not to share school facilities with transgender students whose assigned sex is different than theirs. Students & Parents R & R , 2016 WL 6134121, at *23. In reaching that conclusion, the court considered the practical implications of transgender students' access to facilities, our Nation's history of protecting and deferring to school administrators' discretion, and contemporary notions of liberty and justice. Id. at *24-27.
The court noted that no student was "compelled" by a state actor to use facilities with a transgender student. Rather, District 211's policy allowed transgender students to use facilities of their choice. The facilities included privacy stalls as well as other protections. Additionally, privacy alternatives such as separate, single-user facilities were available. Students could also request the use of an alternate changing area within the locker rooms. The court found these privacy protections significant and that they distinguished the case from those involving compulsion and involuntary invasions of privacy. The court opined:
Generally speaking, the penumbral rights of privacy the Supreme Court has recognized in other contexts protect certain aspects of a person's private space and decision-making from governmental intrusion. Even in the context of the right to privacy in one's own body, the cases deal with compelled intrusion into or with respect to a person's intimate space or exposed body. No case recognizes a right to privacy that insulates a person from coming into contact with someone who is different than they are, or who they fear will act in a way that causes them to be embarrassed or uncomfortable, when there are alternative means for both individuals to protect themselves from such contact, embarrassment, or discomfort.
Id. at *24. Regarding the Nation's history of deferring to schools, the court wrote:
Therefore, our Nation's deeply rooted history and tradition of protecting school administrators' discretion require that this Court not unduly constrain schools from fulfilling their role as a principal instrument in awakening the child to cultural values, in preparing him or her for later professional training, and in helping him or her to adjust normally to his or her environment.
Id. (internal quotation marks, alterations, and citations omitted). The court also found that the plaintiffs' asserted privacy right was inconsistent with contemporary notions of liberty and justice. Id. at *25. It was persuaded that transgender people do not live their lives in conformance with their sex assigned at birth and the transgender students at issue in that case were treated by others in a manner that was consistent with their gender identities. Additionally, the court reflected on the fact that, at that time, the U.S. military and militaries of other nations allowed transgender personnel to serve fully and openly. Recognition and acceptance of transgender people in various areas of society contradicted plaintiffs' asserted right of high school students not to share facilities with transgender students.
Similarly, the Seventh Circuit granted a transgender boy's request for a preliminary injunction enjoining a school district from preventing him from using facilities consistent with his gender identity. See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. , 858 F.3d 1034, 1038 (7th Cir. 2017), cert. dismissed , Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v. Whitaker ex rel. Whitaker , --- U.S. ----, 138 S.Ct. 1260, 200 L.Ed.2d 415 (2018). The plaintiff in that case, a transgender boy named Ash, was forced by the school district to use either the girls' restroom or a gender-neutral restroom in the school's main office. Id. at 1040. Ash had publicly transitioned and believed using the girls' restroom would undermine his transition. Id. He also feared that being the only student allowed to use the restroom in the main office would draw unwanted attention to his transition and have a stigmatizing effect. Id. Lastly, he was concerned about being disciplined for attempting to use the girls' restroom. Id. As a result, Ash drank less water and avoided using restrooms during the school day even though it exacerbated his medical condition that made him more susceptible to fainting and seizures. Id. at 1041. Ash ultimately used the boys' restroom later in high school and was punished for violating school policy. Id. at 1042.
When analyzing Ash's assertion of irreparable harm, the Seventh Circuit found that Ash's use of the boys' restroom was integral to his transition and emotional well-being. Id. at 1045. The court also found that "he was faced with the unenviable choice between using a bathroom that would further stigmatize him and cause him to miss class time, or to avoid use of the bathroom altogether at the expense of his health." Id. When considering Ash's likelihood of success on the merits of his Equal Protection claim, the court found that the school's policy "does nothing to protect the privacy rights of each individual student vis-à-vis students who share similar anatomy and it ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door." Id. at 1052.
The court in that case elaborated:
A transgender student's presence in the restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing bodily functions. Or for that matter, any other student who uses the bathroom at the same time. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.
Id. Accordingly, the court found that Ash was likely to succeed on the merits of his Equal Protection claim. Lastly, the court found the balance of harms favored Ash and the school district had not demonstrated that it will suffer any harm "[n]or have they demonstrated that Ash's presence has actually caused an invasion of any other student's privacy." Id. at 1054.
In further example, a Western District of Pennsylvania court granted transgender high school students' motion for a preliminary injunction enjoining the school from requiring them to use only bathrooms matching their sex assigned at birth or single-user bathrooms. Evancho v. Pine-Richland Sch. Dist. , 237 F.Supp.3d 267, 272 (W.D. Pa. 2017). When analyzing the plaintiffs' Equal Protection claim, that court considered whether other students' right to privacy provided a constitutionally sufficient basis supporting the school district's policy. The court found that the physical layout of the school's facilities ensured adequate privacy. Id. at 290-91. The court was persuaded that the bathroom stalls "afforded actual physical privacy from others viewing their external sex organs and excretory functions. Conversely, others in the restrooms are shielded from such views." Id. at 291.
In another example, the Eastern District of Pennsylvania in Doe v. Boyertown Area School District rejected a high school student's challenge to a school rule allowing transgender students to use facilities consistent with students' gender identities. 276 F.Supp.3d 324 (E.D. Pa. 2017), aff'd , 890 F.3d 1124 (3d Cir. 2018). The Third Circuit unanimously and emphatically affirmed the district court's decision from the bench. The Doe court summarized the student plaintiffs' asserted right to bodily privacy as follows:
At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia , society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.
Id. at 330. In that case, a transgender boy changed clothes with the student plaintiffs in the boys' locker room and one plaintiff observed the transgender boy "wearing nothing but shorts and a bra." Id. at 332. In response to that encounter and others like it, student boy plaintiffs felt ashamed and embarrassed, changed quickly, and otherwise avoided encountering a transgender student in school facilities. Id. When analyzing the plaintiffs' § 1983 claim based on the fundamental right to privacy, the court wrote that plaintiffs believe "[t]he Constitution prohibits Defendants from placing students in situations where their bodies or private, intimate activities may be exposed to the opposite sex or where the students will use privacy facilities with someone of the opposite sex." Id. at 376-77. The Doe Court found that "[t]he plaintiffs have not identified and this court has not located any court that has recognized a constitutional right of privacy as broadly defined by the plaintiffs."
Id. at 383. The court noted that the plaintiffs' right:
is so expansive that it would be a constitutional violation for a female to be in the presence of a male inside of a locker room or bathroom and vice versa, and it would be a violation of one's constitutional right of privacy to view a member of the opposite sex in a state of undress even if the viewing party was fully clothed at the time. There is no support for such a broad right of privacy that has yet to be recognized.
Id. at 386. Indeed, the Third Circuit agreed, writing: "[W]e decline to recognize such an expansive constitutional right to privacy-a right that would be violated by the presence of students who do not share the same birth sex. Moreover, no Court has ever done so." Doe , 893 F.3d at 193.
The district court in Doe then engaged in an in-depth analysis of Students & Parents , ultimately adopting the reasoning therein. Doe , 276 F.Supp.3d at 385-86. The court concluded that plaintiffs "have no constitutional right not to share restrooms and locker rooms with transgender students whose sex assigned at birth is different from theirs." Id. at 387. Similar to Students & Parents , the court in Doe was persuaded that the case did not involve any compelled and involuntary exposure of genitals nor did it involve a strip search or other egregious privacy infringement. The court concluded that the school's policy was narrowly tailored to serve a compelling government interest in not discriminating against transgender students.
Lastly, Defendants rely on a Southern District of Ohio decision denying a school district's motion for a preliminary injunction against USDOE. Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep't of Educ. , 208 F.Supp.3d 850, 854 (S.D. Ohio 2016). The plaintiff school district in that case sought to enjoin USDOE from requiring it to permit a transgender girl to use the girls' restroom. Id. The district attempted to justify excluding Jane, a transgender girl student, by asserting the privacy rights of other students. Id. at 874. The court found that there was "no evidence that Jane herself, if allowed to use the girls' restroom, would infringe upon the privacy rights of any other students." Id. The district argued that the "students' 'zone of privacy' in the restroom starts at the door of the restroom, not merely at the stall door, and that, therefore, students' privacy interests would be imperiled if Jane even enters the girls' bathroom." Id. at 875. The court found that there were no complaints of privacy violations and the district's "purported justification for its policy is 'merely speculative' and lacks any 'factual underpinning.' " Id. It concluded that the district "cannot show that its refusal to let Jane use the girls' restroom is substantially related to its interest in student privacy." Id. at 867.
In contrast with Defendants' authority, Plaintiffs present the Court with unpersuasive precedent that fails to establish their purported privacy right. Plaintiffs argue that their asserted privacy right finds its genesis in the Ninth Circuit's decision in York v. Story , 324 F.2d 450, 455 (9th Cir. 1963). The Ninth Circuit explained: "We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figured from the view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity." Id. ; see also Sepulveda v. Ramirez , 967 F.2d 1413, 1415 (9th Cir. 1992) (stating that the "right to bodily privacy was established" in York ). York involved a male police officer taking unnecessary nude photographs of a female victim in provocative positions and circulating them to other officers. 324 F.2d at 452. The Ninth Circuit reversed the trial court's decision to dismiss the plaintiff's claim, holding that the complaint sufficiently alleged that the officer's acts "constitute an arbitrary intrusion upon the security of her privacy, as guaranteed to her by the Due Process Clause of the Fourteenth Amendment." Id. at 456.
Based in part on York , Plaintiffs cite to several Ninth Circuit decisions acknowledging a right to bodily privacy. For example, in Byrd v. Maricopa County Sheriff's Department , 629 F.3d 1135 (9th Cir. 2011), the Ninth Circuit considered the constitutionality of a strip search in jail. A female cadet conducted a strip search of a male detainee in the presence of approximately three dozen cadets and detention officers as well as other male detainees. Id. at 1137. The cadet searched over the detainee's boxer shorts using her hands to search over his buttocks and genitals. Id. The Ninth Circuit held that the cross-gender strip search, in the absence of an emergency, was a violation of the plaintiff's Fourth Amendment right to be free from unreasonable searches. Id. at 1146-47.
Similarly, in Caribbean Marine Services Co. v. Baldrige , 844 F.2d 668, 670 (9th Cir. 1988), the Ninth Circuit considered whether a federal regulation requiring the presence of a female wildlife observer on a commercial fishing vessel violated the male crewmembers' right to privacy. Given the tight quarters of the fishing vessel, the plaintiff crew members alleged that the observer may both see and be seen by crew members while undressing or performing bodily functions. Id. at 672. The Ninth Circuit vacated the district court's grant of a preliminary injunction in the crew members' favor. The court found, in relevant part, that the crew members' "mere allegations of inconvenience" would not support a claim of "irreparable harm to their constitutional rights." Id. at 676. The court continued, however, that it would not reach the issue of whether "a female observer would infringe any constitutionally protected privacy interests" because the district court had not considered the plaintiffs' likelihood of success on the merits when it issued the preliminary injunction. Id.
In Supelveda v. Ramirez , the Ninth Circuit considered whether a male parole officer violated a female parolee's right to bodily privacy by entering the bathroom stall she occupied while she was partially clothed. 967 F.2d 1413, 1416 (9th Cir. 1992). The plaintiff parolee was required to produce a urine sample for a drug test and the male parole officer entered the stall without her consent. Id. at 1415. The plaintiff strongly objected, asking the officer to leave. In response, he said that she "did not have anything he had not seen before." Id. The parole officer "remained in the stall while Supelveda finished urinating, cleaned herself, and dressed." Id. The Ninth Circuit found that, unlike other inmate cases involving obscured cross-sex observations from a distance, Supelveda experienced a "far more degrading" observation. Id. The Ninth Circuit rejected the parole officer's claim for qualified immunity, concluding that the plaintiff had asserted a clearly established right to bodily privacy. Id.
Each of the Ninth Circuit cases that Plaintiffs cite deal with alleged violations outside of the school context. Further still, these cases involve very different circumstances than the facts of this case. Plaintiffs' Ninth Circuit authority involves a strip search that violated the Fourth Amendment, a female observer sharing ship quarters with male fishermen, a police officer taking unnecessary nude photos of a female crime victim, and a male parole officer entering a female parolee's bathroom stall while she urinated. Simply put, each involved government-compelled exposure of the plaintiffs' bodies to government actors of the opposite biological sex. At its core, none of these cases support 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. Indeed, Plaintiffs' Ninth Circuit authority does not establish that the purported privacy right is implicit in the concept of ordered liberty.
Plaintiffs also rely on two out-of-circuit cases that the Court finds unpersuasive. The only case Plaintiffs cite that discusses a privacy right in the school context is a Sixth Circuit decision involving a parent's challenge to the dress code at his daughter's middle school. Blau v. Fort Thomas Pub. Sch. Dist. , 401 F.3d 381, 385 (6th Cir. 2005). The court there framed the plaintiff's asserted privacy right as the right to wear blue jeans, which it rejected. Id. at 393-94. Plaintiffs point to the Blau court's citation to an old Supreme Court case to support their position. Specifically, in Union Pacific Railway Co. v. Botsford , 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), the Supreme Court stated:
To compel any one ... to lay bare the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass; and no order of process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals.
Id. at 252. That case involved a defendant's request in a tort action that the plaintiff submit to a surgical examination to determine the extent of her injuries. Blau , 401 F.3d at 395. The Sixth Circuit in Blau concluded that the plaintiff's reliance on Pacific Railway was misplaced and the quote was taken out of context. "Quite plainly, forcing someone to 'lay bare the body' to a surgical procedure is not the same thing as forcing a middle-school student to wear certain types of clothes to school." Id. at 395. Here too, the facts of Blau and Pacific Railway are distinguishable and do not lend any support for Plaintiffs' purported privacy right relating to the presence of transgender students in school facilities.
The second out-of-circuit case Plaintiffs rely upon is a District of Maine decision involving a pretrial detainee's lawsuit against a jail. Crosby v. Reynolds , 763 F.Supp. 666, 667 (D. Me. 1991). The plaintiff alleged that the jail unlawfully housed her with a transgender woman who retained male genitalia. Id