In Jane and John Doe No. 1 v. Bethel Local School District Board of Education, (6th Cir., Aug. 26, 2025), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of claims that a school's policy on use of communal bathrooms by transgender students violated the free exercise rights of Muslim and Christian students and their parents. The court dismissed as moot plaintiffs' request for a declaratory and injunctive relief because while the case was pending, the school changed its policy pursuant to a new Ohio law that mandated bathroom access based on biological sex. However, plaintiffs' claim for damages from past violations was not moot. Nevertheless, the court found no 1st Amendment violation, focusing on the Supreme Court's recent decision in Mahmoud v. Taylor. The court said in part:
The Supreme Court acknowledged that “the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable.” ... But the Court situated Mahmoud in line with Wisconsin v. Yoder, ... as an exception to the general rule because “[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.” ...
This exception does not apply here. The bathroom policy does not impose a burden “of the [] same character as the burden in Yoder.”... Unlike the challenged state law in Yoder, which compelled Amish families to send their children to public or private schools, and the curricular requirement in Mahmoud, which required elementary school students to attend classes where certain LGBTQ+-inclusive storybooks that “unmistakably convey a particular viewpoint about same-sex marriage and gender” were taught, the bathroom policy was not an educational requirement or curricular feature, and the policy did not require students to use the communal restrooms.... [Single occupancy bathrooms were available to students.]
Because the policy was neutral and generally applicable, it is subject to rational basis review, which it survives....
On appeal, the parent plaintiffs specifically argue that the School District infringed on their right to direct the upbringing of their children by (1) modifying the School District’s bathroom operations, (2) increasing their children’s risk of physical danger, and (3) choosing not to answer questions about implementing the bathroom policy. We are unpersuaded by their arguments, and thus, we affirm the grant of judgment on the pleadings on plaintiffs’ Fourteenth Amendment claim....
Judge Larsen filed an opinion concurring in the judgment but saying that the majority had read the Mahmoud case too narrowly. He said in part:
... [T]he ultimate question Mahmoud poses is whether a school policy “substantially interfere[s] with the religious development of the child or pose[s] a very real threat of undermining the religious beliefs and practices the parent wishes to instill in the child.”... All sorts of non-curricular school rules—which aren’t clearly “educational”—can interfere with parents’ religious upbringing of their children. Imagine, for example, a school that provides free school lunch to all students, regardless of income, to remove the stigma associated with accepting free or reduced-price meals. If the school neither provided Kosher meals nor permitted parents to pack brown-bag lunches, that might well impose a Yoder-like burden on Jewish parents and students, even though the policy would neither be obviously “educational” nor involve the curriculum. If the school cannot require Jewish students to read books “designed to” undermine their commitment to keeping Kosher, why would the school be able to more directly compel them to eat a grilled ham and cheese?...
... In this case, Bethel’s policy allowed religious students to “opt out” by using single-stall restrooms instead of the communal ones to which they objected. That important fact distinguishes this case from both Yoder and Mahmoud....
Buckeye Flame reports on the decision.
