Case challenging Oklahoma transgender bathroom law appealed after federal judge dismisses it

OKLAHOMA CITY — A lawsuit challenging an Oklahoma law affecting transgender students’ use of school restrooms has been appealed after being dismissed in Oklahoma City federal court.

The families of three transgender students sued the Oklahoma State Department of Education in 2022 to overturn Senate Bill 615, which they said is unconstitutional and a Title IX violation. 

SB 615 required school restrooms to be used according to a person’s biological sex, not their gender identity. A single-occupant restroom also must be available as an alternative.

On Friday, the American Civil Liberties Union of Oklahoma appealed U.S. District Judge Jodi W. Dishman’s decision to throw out the lawsuit. Last month, Dishman fully dismissed the case with prejudice, meaning it cannot be refiled.

The dismissal was “mildly surprising” because it means the judge didn’t just disagree, but found the plaintiffs’ claims to be meritless, said Devraat Awasthi, an ACLU legal fellow working on the case. 

The ACLU of Oklahoma has appealed Dishman’s decision to the Tenth Circuit Court of Appeals.

“SB 615 is a law that elevates the privacy and safety interest of cisgender students above those of transgender and nonbinary students, and that violates the Constitution’s promise of equality under the law,” Awasthi said. “That’s a promise that all Oklahomans care about, and I think that we are vindicating that important commitment by bringing this appeal.”

Dishman ruled in favor of the state Attorney General’s Office, who contended treatment based on gender identity doesn’t amount to sex discrimination under Title IX.

The three plaintiffs don’t present a danger to fellow students, the judge wrote in her court order, but she decided striking down the law could create a safety issue.

“If the Court adopted Plaintiffs’ position, any biological male could claim to be transgender and then be allowed to use the same restroom or changing area as girls,” Dishman wrote. “This is a major safety concern.

“However, if Plaintiffs’ arguments were adopted, it would put school officials in the position of either having to conduct a subjective analysis of the sincerity of an individual’s gender identity or merely take their word for it.”

The Attorney General’s Office declined to comment on the case.

One of the defendants was state Superintendent Ryan Walters, the head of the state Education Department. He has been one of the most vocal advocates of outlawing school bathroom use by gender identity, saying it puts female students at risk.

“The (U.S.) District Court was correct in recognizing the real physiological differences between men and women, and the real interest of parents in protecting their kids,” Walters said in a statement. “Oklahomans strongly oppose the radical left trying to force young girls to share bathrooms with boys, and I will always fight to protect our students.”

Walters also has been a supporter of Oklahoma laws that prohibit gender-affirming medical care for minors and that block transgender girls from playing in women’s sports. He pursued new rules at the Education Department to prevent students from retroactively changing prior school records to match their gender identity.

Laws like these embolden bullies and put transgender students at risk, Awasthi said. 

He pointed to the death of Nex Benedict, a nonbinary student from Owasso who had reported bullying. A medical examiner’s report found Benedict, 16, died by suicide on Feb. 8, a day after the student was in a fight in a school restroom. 

“I think an important facet of laws like this in general is it gives cover to bullies and to bigots in our society because it makes them think their kind of discriminatory intent is supported by the state,” Awasthi said. “It kind of gives almost permission for that kind of horrible treatment to occur in our public schools.”

Nex Benedict’s death ruled a suicide in medical examiner’s report

Walters called this argument around Benedict’s death a “grotesquely distorted radical, progressive, Democrat narrative” in a Fox News opinion piece he published on Thursday. Walters’ editorial repeatedly referred to Benedict as a girl, despite the Benedict family having said this is an inaccurate description of who the student was. 

About a dozen other states had passed similar bathroom bills by the time Oklahoma’s governor signed SB 615 into law. Legal challenges have succeeded in overturning similar legislation elsewhere in the country. 

The U.S. Supreme Court has let stand two rulings from the Fourth Circuit Court of Appeals that affirmed students’ rights to use the restroom that matches their gender identity.

New rules the U.S. Department of Education introduced on Friday include gender identity protections in Title IX.

A co-author of SB 615, Rep. Kevin West, R-Moore, said several Oklahoma lawmakers worked on the bill’s language to “give that safety and that security to the kids.” He said the legislation’s authors chose not to borrow bill language from other states. 

“I think that might have helped some in it being able to stand up (in court) because we had so many different eyes on it and so many people working on it,” West said.