An Oklahoma law affecting transgender students’ use of public school bathrooms came before a three-judge panel Thursday in the U.S. Tenth Circuit Court of Appeals.
Senate Bill 615, signed into law in 2022, requires individuals to use multi-stall school bathrooms and locker rooms that align with their biological sex, not their gender identity. A single-use bathroom also must be made available.
Oral arguments on behalf of three transgender students challenging the law contended an Oklahoma City federal judge was wrong to dismiss their lawsuit without further considering the case. The plaintiffs, led by then-Noble High School student Andrew Bridge, filed the lawsuit in 2022, arguing SB 615 violates Title IX and the U.S. Constitution’s Equal Protection Clause.
U.S. District Judge Jodi W. Dishman dismissed the lawsuit with prejudice in March 2024, meaning she found the case to be without merit and decided it cannot be refiled.
The plaintiffs then appealed the dismissal to the Tenth Circuit, based in Denver.
The plaintiffs’ attorney, Robert Gianchetti of Covington & Burling LLP, said his clients present a plausible claim for relief and “the students should be afforded the opportunity to prove their claims on their merit.”
“These are very fact-intensive issues that need to be resolved at a later date,” Gianchetti told the appeals court judges.
Oklahoma Solicitor General Garry Gaskins, representing the state and defending the law, contended the case would face “insurmountable obstacles” if it proceeds. He asked the Tenth Circuit judges to let Dishman’s dismissal stand.
The lawsuit is “fundamentally transformed” in light of the U.S. Supreme Court’s decision this year to uphold a Tennessee law banning gender-affirming medical treatments for minors, Gaskins said. The Supreme Court justices rejected similar arguments that the Tennessee law violated transgender students’ equal protection rights.
Tenth Circuit Chief Judge Jerome A. Holmes echoed the Tennessee precedent. He referenced Supreme Court Justice Samuel Alito’s opinion that determined different treatment based on gender identity is not enough to violate the Equal Protection Clause.
Rather, the challenged law must treat people unequally based on their biological sex to be overturned, according to Alito’s opinion.
“There’s no differential treatment of men and women in this case,” Holmes said of the Oklahoma lawsuit.
Allowing bathroom use by gender identity could present a “major safety concern,” the Oklahoma City federal judge decided when throwing out the lawsuit.
Tenth Circuit Judge Carolyn B. McHugh, though, said the safety argument “seems a little thin.”
“Do we just presume that there’s a safety issue?” McHugh said. “The (plaintiffs’) complaint suggests the safety issue goes the other way. If you force transgender students to use the bathroom of their sex at birth, they’re more likely to be subject to being beaten up.”
The choice of whether to overturn the dismissal and allow the lawsuit to continue now rests with Holmes, McHugh and Senior Judge Michael R. Murphy. The judges can reach a decision by voting 3-0 or 2-1.
There is no set timeline to issue a decision, but the court typically takes four months, said Cassidy Fallik, of the ACLU of Oklahoma, which represents the plaintiffs.
