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(CN) — A 10th Circuit panel appears likely to revive a lawsuit brought by a group of parents challenging a Colorado school district policy that sorts students by gender identity for overnight trips, saying it forced their children to sleep with and shower with children of the opposite sex.
The Jefferson County School District policy maintains that students share overnight accommodations with students who share their “consistently asserted gender identity,” rather than sex assigned at birth. In a Denver courtroom Tuesday, attorney Noel Sterett said the policy prioritizes the safety and privacy of transgender students but fails to equally accommodate religious students who don’t wish to sleep or shower in the presence of the opposite sex.
By not warning parents ahead of time when their child is assigned to a room with a transgender student, Sterett said the school district runs afoul of recent Supreme Court precedent set by Mahmoud v. Taylor, which directs public schools to allow parents to opt their children out of LGBTQ-inclusive lessons and storybooks if they interfere with their children’s religious upbringing.
Defending the school district, attorney Eric Olson said the district gives parents an opt-out by allowing them to take their child home at night or choose not to send them on an overnight trip altogether. Sterett said requiring students to go home would be unfair.
“They just want their children to have the same opportunities to participate fully in overnight activities and overnight trips without being excluded, penalized or isolated,” Sterett said of the plaintiffs.
The judges were not convinced that the policy is equitable to both sides.
“Isn’t this just stigmatizing one group of students in order to save another group from stigma?” U.S. Circuit Judge Nancy Moritz asked. “That stigmatizes them on the basis of their religion. And that’s what Mahmoud says you can’t do.”
Three sets of parents sued in September 2024 after the 11-year-old daughter of Joe and Serena Wailes was assigned to room with a transgender student from another school on a class trip to Washington, D.C. Around the same time, Bret and Susanne Roller learned a camp counselor for their son’s sixth grade camping trip, assigned to the boys’ bunks and showers, was non-binary but assigned female at birth. Rob and Jade Perlman say their daughter might play on her varsity basketball team, and they’re worried that she might room with a transgender student if the team travels for tournaments.
U.S. District Judge Regina Rodriguez dismissed the lawsuit in August, finding the Perlmans lacked standing and the other parents lacked the right to control a public school’s curriculum or policies in the interest of their religious rights. She noted that the specific sixth-grade camping trip offers single bunks and private changing and shower spaces.
The Joe Biden appointee added that the policy forces no religious beliefs on students by merely subjecting them to the existence of transgender people, and the government has a more compelling interest to protect trans students from discrimination.
The three-judge panel disagreed.
“Mahmoud makes it clear that parents have a right to guide the religious upbringing of their children,” said U.S. Circuit Judge Harris Hartz, a George W. Bush appointee.
The 10th Circuit will likely remand to allow the case to progress to the preliminary injunction phase. While the judge must accept a lawsuit’s pleadings as fact in the motion to dismiss stage, she can consider a wider range of evidence on preliminary injunction and later on summary judgment, which Olson believes will help his case.
The plaintiffs say the school should have warned them before the trips, but Olson said there’s no evidence that the school was aware of the birth sex of any of the students in question.
“We can’t keep a roster,” Olson said. “State law prohibits the notification of alteration on a birth certificate.”
Olson said the plaintiffs are asking the district to change the policy with regard to every student in it.
“No, they’re not,” countered Moritz, a Barack Obama appointee. “It’s your burden to show that this is narrowly tailored, and they allege it was not narrowly tailored.”
The plaintiffs say the district can ask parents ahead of time if they will allow their student to board with a transgender student. But because the district isn’t always aware of sex assigned at birth, Olson said it would create a larger burden on the other side and force students to out themselves.
Olson agreed that a parent taking their child home at the end of the day or keeping them home from a trip altogether would constitute a burden, but no different a burden from those accepted in Mahmoud, in which parents had to pay for daycare on certain days when LGBTQ-inclusive books were read.
“There’s always a financial cost for the opt-outs,” he said.
U.S. Circuit Judge Scott Matheson, an Obama appointee, also sat on the panel. The panel didn’t indicate when it will rule.
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