A favorable court decision in Oregon chips away at the right wing’s favorite cause.
For some reason the religious right has decided that 0.6% of the population pose the most pervasive and pernicious threat throughout Christendom to their very lives. They are further obsessed by where that 0.6% of the population can pee. It is disproportionate irrationality,
Slowly Boiled Frog started as a gay blog. It has increasingly become dominated by transgender and gender nonconforming issues. That is just fine with me. Content reflects the bigotry that LGBT people are regularly forced to endure. I am only reacting to the feigned outrage, particularly as it affects school kids.
I write feigned because in the average high school there might be a couple of trans or gender nonconforming kids. Indeed the Oregon case of Parents for Privacy v. Sessions seems to be a fuss over one transgender boy. Judging from the hyperbolic complaint you would think that this was the greatest crisis since 9/11. Boys supposedly damaging their health by not peeing because of the anxiety caused by this one transgender boy. They describe anxieties equivalent to Gen. Custer’s state of mind just before his life hit the skids.
Parents for Privacy is an ad hoc group. The real driver, I suspect, is a small 501(c)3 called Parents’ Rights in Education which files its tax return by e-postcard (gross receipts under $50,000). It shares an address with Summit Manufacturing in Hillsboro, OR; Lew Barnes, proprietor. There is no attribution to any individuals on the organization’s website including blog posts and the occasional newsletter. Mr. Barnes will likely stew over my request, today, for a copy of the 990. I think he tried to be an anonymous coward.
A very sober jurist, Judge Marco Antonio Hernandez, dismissed this case on July 24. I will get to some highlights shortly but first, the (delayed) reaction today, Tuesday, of Claire Chretien at LifeSiteNews. She writes:
Boys will continue to be allowed in girls’ restrooms and locker rooms in Oregon after a judge dismissed a lawsuit against that policy, saying, “high school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs.”
They simply refuse to characterize this accurately. As such, transgender girls will continue to be allowed in girls’ restrooms. Big difference. Here is some “useful” commentary:
This ruling “reveals everything people need to know to understand the utter corruption of our court system,” Julie Quist, Board Chair of the Child Protection League (CPL), told LifeSiteNews. “Decency and respect for our children…are being cast aside for the political advantage of a militant political force that is systematically violating the innocence, dignity and freedom of our children and all of us.”
Ms. Quist was once a district director for Michele Bachmann and has been an unsuccessful candidate for Congress. Child Protection League is another tiny nonprofit filing by e-postcard.
Ms. Quist is not the brightest bulb. A court decision that she doesn’t like means that the court system is “utterly” corrupt. I would like to know what that “militant political force” is. The concurring opinions of every mainline medical and professional counseling organization in North America? These Christian hate mongers and bigots do not seem to realize that they are extremists. What about the dignity and freedom of the trans boy? Must he be victimized by ancient superstitions?
Judge Marco Antonio Hernandez had the final word on this matter. Among other things, he worked through the hyperbole (AKA bullshit):
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.
Referring to a Seventh Circuit decision regarding Ash Whitaker (a very brave kid):
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.
In other words, if a right to privacy exists then it exists for the trans boy as well. As a practical matter, he enters a bathroom stall, closing the door behind him. No one dies.
Hernandez included part of the Seventh Circuit ruling into his:
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.
Once again, the Court appeals to common sense, something that seems to be in short supply in conservative Christian circles.
Stop wasting the Court’s time:
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.
The Court finds that Plaintiffs have failed to sufficiently allege a fundamental right to
privacy cognizable under the Fourteenth Amendment. The cases that Plaintiffs rely on are
inapposite and involve egregious state-compelled intrusions into one’s personal privacy. Put
another way, Plaintiffs draw heavily on prisoner and police cases distinguishable from the issue
presented in this case. Those cases involved government officials viewing or touching the naked
bodies of persons of the opposite sex against their will. Even under some of those circumstances,
courts have rejected the asserted privacy right.
Finally a dose of reality:
The Court is persuaded by Defendants’ authority and concludes that high school students
do not have a fundamental privacy right to not share school restrooms, lockers, and showers with
transgender students whose biological sex is different than theirs. The 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.
My fondest hope is that the religious conservatives will appeal this decision so that it will become precedent throughout the Ninth Circuit. Their chances of prevailing, well, … I haven’t won the multi-state lottery nor have I been hit by lightning lately.