School District 49 v. Sullivan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25–cv–01463–JLK–MDB
SCHOOL DISTRICT 49,
MONUMENT ACADEMY,
EDUCATION REENVISIONED BOCES,
ACADEMY SCHOOL DISTRICT 20,
JAMES IRWIN CHARTER SCHOOLS,
MONTEZUMA CORTEZ SCHOOL DISTRICT,
THE CLASSICAL ACADEMY, and
COLORADO SPRINGS SCHOOL DISTRICT 11,
Plaintiffs,
v.
AUBREY SULLIVAN, Director of the Colorado Civil Rights Division, in her official capacity,
SERGIO RAUDEL CORDOVA, as member of the Colorado Civil Rights Division, in his
official capacity,
GETA ASFAW, as member of the Colorado Civil Rights Division, in her official capacity,
MAYUKO FIEWEGER, as member of the Colorado Civil Rights Division, in her official
capacity,
DANIEL S. WARD, as member of the Colorado Civil Rights Division, in his official capacity,
JADE ROSE KELLY, as member of the Colorado Civil Rights Division, in her official capacity,
ERIC ARTIS, as member of the Colorado Civil Rights Division, in his official capacity, and
PHILLIP WEISER, Colorado Attorney General, in his official capacity,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
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This matter is before the Court on the State Defendants’1 Joint Motion to Dismiss the
Amended Complaint ([“Motion”], Doc. No. 36).2 Plaintiffs responded in opposition (Doc. No.
46) and the State Defendants replied in support (Doc. No. 49). Additionally, the Court heard oral
argument on the Motion on December 8, 2025. (Doc. No. 53) After considering the Motion,
briefing, oral argument, and relevant law, the Court respectfully RECOMMENDS that the
Motion be GRANTED.
STATEMENT OF THE CASE
Plaintiffs are a collection of school districts and charter schools (collectively, “Plaintiffs”
or the “School Districts”) that, during the spring and summer of 2025, “adopted policies
classifying sports teams by biological sex and maintaining separate locker rooms and
accommodations.”3 (Doc. No. 35 at ¶¶ 9, 39–50; see id. at ¶¶ 40–41 (saying District 49’s policy
“prohibits biological males from competing on girls’ teams and prohibits biological females from
competing on boys’ teams” and “forbids boys from sharing locker or hotel rooms with girls and
prohibits girls from sharing locker or hotel rooms with boys”); see also id. at ¶ 43 (reproducing
1 The State Defendants are the Director of the Colorado Civil Rights Division, Aubrey Sullivan,
the members of the Colorado Civil Rights Commission, Sergio Raudel Cordova, Geta Asfaw,
Mayuko Fieweger, Daniel S. Ward, Jade Rose Kelly, and Eric Artis, and the Attorney General of
Colorado, Philip Weiser. (See Doc. No. 36.)
2 The Colorado High School Activities Association (“CHSAA”) Defendants also filed a motion
to dismiss the claims against them. (Doc. No. 37.) However, on December 2, 2025, Plaintiffs
notified the Court that they reached a settlement with the CHSAA Defendants, and on January
13, 2026, the CHSAA Defendants were dismissed from the case. (Doc. Nos. 51; 58.)
Accordingly, the CHSAA motion to dismiss is moot and the Court will not address it here.
3 According to the School Districts, District 49 was the first to adopt such a policy and the other
Plaintiffs “adopted materially identical policies.” (Doc. No. 35 at ¶ 44.)
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the entirety of District 49’s policy); id. at ¶¶ 51–73 (describing the rationale behind the
policies).)
However, according to the School Districts, the Colorado Anti-Discrimination Act
(“CADA”), “as interpreted and applied” by the State Defendants, bars them from enforcing their
new policies without facing “serious costs and sanctions.” (Id. at ¶¶ 85, 93–94.) Specifically,
Plaintiffs allege that the relevant portion of CADA, “as interpreted by the Defendants in 3 Colo.
Code Regs. § 708-1:81.9,” requires them to allow individuals to use gender segregated facilities
(e.g., locker rooms) in a manner “consistent with their gender identity.” (Id. at ¶ 88.) Further, the
School Districts say the State Defendants require them to “allow males who identify as girls to
play on girls’ sports teams.” (Id. at ¶ 89.)
In short, Plaintiffs allege that CADA—and by extension the State Defendants—are
preventing the School Districts from enforcing segregation policies that are based on biological
sex. Plaintiffs do not allege that they have been subjected to any enforcement action. (See
generally Doc. No. 35.) Nevertheless, Plaintiffs say they have a “credible fear” of future
enforcement. (Id. at ¶ 111.)
Plaintiffs bring Fourteenth Amendment sex-discrimination claims under the Equal
Protection Clause (Claims 1 and 3) as well as claims for violation of the right to bodily privacy
and safety (Claims 2 and 4). (Doc. No. 35 at ¶¶ 110–161.) Claims 1 and 2 are brought by
Plaintiffs on their own behalf; Claims 3 and 4 are brought by Plaintiffs on behalf of their
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students.4 (Id.) The State Defendants are sued in their official capacities only. (Id. at ¶¶ 21–22,
31–33.) Plaintiffs seek a declaration that CADA and its implementing regulations:
do not require the Plaintiffs to allow boys to play on girls athletic teams, girls to
play on boys athletic teams, to open private spaces open to athletes of one sex to
members of the opposite, or to house members of the opposite sex in travel
accommodations for school sports because ... such an interpretation of CADA
violates the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.
(Id. at 31.) They also seek a permanent injunction that would preclude Defendants from
enforcing CADA against them in a way that would require the School Districts to allow cross-
sex sports participation and locker room use. (Id. at 31–32.)
The State Defendants argue that Plaintiffs lack prudential standing because they cannot
maintain Fourteenth Amendment claims against their parent state, and because they cannot
maintain third party claims on behalf of their students.5 (Id. at 12–15.)
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6),6 a court may dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling
4 Certain phrasing in the Amended Complaint suggests Claims 3 and 4 are only brought on
behalf of District 49’s students. (See Doc. No. 35 at 28, 30.) However, during the Motion
Hearing, Plaintiffs’ counsel confirmed this was a scrivener’s error, as Claims 3 and 4 are brought
on behalf of students in all of Plaintiffs’ districts or schools.
5 The State Defendants also argue that Attorney General Weiser has Eleventh Amendment
immunity, (Doc. No. 36 at 5–10), and that Plaintiffs lack Article III standing, (id. at 10–11).
However, as noted below, the Court finds it need not reach those arguments.
6 In Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), the Supreme
Court acknowledged that at least some of the principles historically encompassed by the
“prudential standing” doctrine are not really issues of “standing” at all. See id. at 127 (describing
“prudential standing” as a “misnomer” under certain contexts). Thus, prudential standing
arguments are not always considered under Federal Rule of Civil Procedure 12(b)(1). See Kerr v.
Polis, 20 F.4th 686, 696 (10th Cir. 2021) (“Following Lexmark, we now have greater clarity
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on such a motion, a court accepts all well-pleaded facts as true and views the allegations in the
light most favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010).
However, the plaintiff bears the burden of presenting a complaint with enough factual details to
suggest entitlement to relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Indeed, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Bixler v.
Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)).
Ultimately, courts assess “whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
ANALYSIS
The Court begins its analysis with prudential standing.
about which issues anachronistically labeled as ‘standing’ are actually jurisdictional[.]”). The
appropriate legal standard turns on the specific argument being made. As to the arguments at
issue here—namely that Plaintiffs cannot bring Fourteenth Amendment claims against their
parent states and that Plaintiffs may not bring these claims on behalf of their students—the Tenth
Circuit treats these as “merits” arguments that may be appropriately considered under Rule
12(b)(6). See Kerr, 20 F.4th at 696 (“[W]hat we formerly referred to as political subdivision
standing is an inquiry going to the merits of the case, not the court’s jurisdiction. Under this
inquiry, we no longer ask whether a political subdivision has standing. We ask whether the
political subdivision has a cause of action.”); The Wilderness Soc. v. Kane Cnty., Utah, 632 F.3d
1162 n.1 (10th Cir. 2011) (stating that issues of third-party standing are “not a jurisdictional
limitation”). Moreover, courts in this District have generally defined prudential standing
arguments as “merits” arguments to be considered under Rule 12(b)(6). See Hernandez v. United
Builders Serv., Inc., 2019 WL 4744788, at *4 (D. Colo. Sept. 30, 2019) (“Standing which is truly
‘prudential’—and not jurisdictional—is subject to dismissal under Rule 12(b)(6).” (footnote
omitted) (emphasis in original)); see also Bruce v. City of Colorado Springs, 2022 WL
16702252, at *13 (D. Colo. Sept. 27, 2022) (noting that when a plaintiff is not “assert[ing] his
own legal rights … dismissal under Rule 12(b)(6) is likely the appropriate route.”), aff’d, 2024
WL 1109065 (10th Cir. Mar. 14, 2024). Thus, the Court proceeds under Rule 12(b)(6).
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Prudential standing represents “judicially self-imposed limits on the exercise of federal
jurisdiction” that are “founded in concern about the proper—and properly limited—role of the
courts in a democratic society[.]” Bennett v. Spear, 520 U.S. 154, 162, (1997) (quoting Allen v.
Wright, 468 U.S. 737, 751 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014), and Warth v. Seldin, 422 U.S. 490, 498 (1975)).
“[A] party’s interest for the purposes of constitutional standing does not automatically confer
prudential standing.” The Wilderness Soc. v. Kane Cnty., Utah, 632 F.3d 1162, 1171 (10th Cir.
2011). “In other words, a party may have constitutional standing but still not satisfy prudential
standing.” Hernandez v. United Builders Serv., Inc., 2019 WL 4744788, at *4 (D. Colo. Sept. 30,
2019). “Although a court has the independent duty to verify that a party has Article III standing,
where a party lacks prudential standing, a court may proceed directly to that issue without
deciding whether plaintiff has constitutional standing.” Id. (citing VR Acquisitions, LLC v.
Wasatch Cnty., 853 F.3d 1142, 1147 n.3 (10th Cir. 2017)); see also Tenet v. Doe, 544 U.S. 1, 6
n.4 (2005) (saying “the prudential standing doctrine, represents the sort of ‘threshold question’
we have recognized may be resolved before addressing jurisdiction”). Likewise, the Court may
move to the prudential standing arguments without deciding whether the Attorney General has
Eleventh Amendment immunity. See Hill v. Warsewa, 947 F.3d 1305, 1308 (10th Cir. 2020)
(finding the district court did not err by analyzing prudential standing before sovereign
immunity). In that sense, and because the Court finds Plaintiffs lack prudential standing, the
Court’s analysis not only begins with prudential standing, but ends there as well.
A prudential standing analysis has historically implicated three broad principles—“the
general prohibition on a litigant’s raising another person’s legal rights, the rule barring
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adjudication of generalized grievances more appropriately addressed in the representative
branches, and the requirement that a plaintiff’s complaint fall within the zone of interests
protected by the law invoked.” Lexmark, 572 U.S. at 126. Generally-speaking, the question that
needs to be answered through a prudential standing analysis “is whether the constitutional or
statutory provision on which the claim rests properly can be understood as granting persons in
the plaintiff’s position a right to judicial relief.” Warth, 422 U.S. at 500.
Here, the State Defendants raise two prudential standing arguments. First, they argue
Claims 1 and 2 must be dismissed because “political subdivisions cannot challenge state statues
of their parent state on Fourteenth Amendment grounds.” (Doc. No. 36 at 12–13.) Second, they
argue Plaintiffs have failed to establish third-party standing on behalf of their students in Claims
3 and 4. The Court addresses each argument in turn.
I. 	Plaintiffs’ Fourteenth Amendment Claims Against their Parent State
Under Tenth Circuit precedent, a political subdivision’s claim against its parent state
“cannot proceed” if it “rests on a substantive constitutional provision” such as the Fourteenth
Amendment. Kerr v. Polis, 20 F.4th 686, 696 (10th Cir. 2021); see Branson Sch. Dist. RE-82 v.
Romer, 161 F.3d 619, 628 (10th Cir. 1998) (“It is well-settled that a political subdivision may not
bring a federal suit against its parent state based on rights secured through the Fourteenth
Amendment.”). This is because political subdivisions, as “department[s] of the state,” are
generally subordinate to the state’s aims and goals. Trenton v. New Jersey, 262 U.S. 182, 187
(1923); see Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (1933) (“A
municipal corporation, created by a state for the better ordering of government, has no privileges
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or immunities under the federal constitution which it may invoke in opposition to the will of its
creator.”). On its face, this would appear to end the inquiry into Claims 1 and 2.
However, Plaintiffs argue a carveout. They say the general prohibition does not apply
because the School Districts do not seek to vindicate their own rights, but rather the rights of
their students. (Doc. No. 46 at 15–16.) That is, according to Plaintiffs, though political
subdivisions are generally barred from bringing Fourteenth Amendment claims against a parent
state for alleged violations of their own purported Fourteenth Amendment rights, they
nevertheless can bring claims against a state when the claims are predicated on alleged violations
of the Fourteenth Amendment rights of individuals found within the subdivision. (See id. at 13–
16 (noting that two of the leading Supreme Court cases, Trenton, 262 U.S. 182 and Williams,
289 U.S. 36, each involved challenges to state laws impacting the “internal administration” of
the political subdivisions, rather than the constitutional rights of their citizens).
This argument raises the natural question of whether, as framed by Plaintiffs, Claims 1
and 2, which are brought on Plaintiffs’ own behalf—purportedly to vindicate the rights of their
students—are indistinguishable from Claims 3 and 4, which are brought on behalf of their
students to vindicate the very same rights. Indeed, Plaintiffs’ carveout argument seems to walk
right into this collapsing of claims, and the Court could simply recommend dismissal of Claims 1
and 2 on the basis that they are duplicative of Claims 3 and 4.
But even assuming Claims 1 and 2 are somehow distinct from Claims 3 and 4, they
nevertheless fail. Plaintiffs argue that “[t]he Supreme Court has exercised jurisdiction over at
least two Equal Protection suits brought by political subdivisions against their parent state”:
Romer v. Evans, 517 U.S. 620 (1996) and Washington v. Seattle School District No. 1, 458 U.S.
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457 (1982). (Doc. No. 46 at 15–16.) According to Plaintiffs, because neither case was rejected
for lack of prudential standing, it must mean this carveout exists. (Id. at 16.) But neither Romer
nor Washington analyzed this issue, rendering the force of Plaintiffs’ argument limited at best.
And, unlike here, the plaintiffs in Romer and Washington were made up of political subdivisions
and individuals, making prudential standing a minor factor in the ultimate adjudication of the
cases. See Josh Bendor, Municipal Constitutional Rights: A New Approach, 31 Yale L. & Pol’y
Rev. 389, 394 (2013) (noting that in Washington, “parents and the school district sued the state
to vindicate the district’s right to bus students in order to combat segregation,” and in Romer,
“individuals and municipalities sued the state to contest a state initiative removing their power to
enact local antidiscrimination ordinances”); see also id. at 408 n.139 (noting that the United
States was an intervenor plaintiff in Washington by the time the case reached the Supreme
Court).
Moreover, The Tenth Circuit’s statements on this issue leave little-to-no room for
Plaintiffs’ construction of Romer and Washington. For example, in City of Hugo v. Nichols,
which was decided after Romer and Washington, the Tenth Circuit reiterated the unflinching rule
that political subdivisions are barred “from advancing Fourteenth Amendment claims against
their parent states or other political subdivisions of the same state.” 656 F.3d 1251, 1256 (10th
Cir. 2011). More recently, in Kerr, the Tenth Circuit emphasized “that a municipality may not
bring a constitutional challenge against its creating state when the constitutional provision that
supplies the basis for the complaint was written to protect individual rights[.]” 20 F.4th at 694
(quoting Branson, 161 F.3d at 628). And although a political subdivision can challenge parent
state action when “the source of substantive rights [is] a federal statute directed at protecting
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political subdivisions,” it can never bring Fourteenth Amendment claims on its own behalf to
vindicate individual rights. Kerr, 20 F.4th at 695 (quoting City of Hugo, 656 F.3d at 1257).
Because Claims 1 and 2 draw on the Fourteenth Amendment and seek to protect individual
rights, they are barred.
II. 	Plaintiffs’ Third-Party Standing7
There is a “general prohibition” against a litigant “raising another person’s legal
rights[.]” Allen, 468 U.S. at 751, abrogated on other grounds by Lexmark, 572 U.S. 114. Indeed,
“the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499. “Without such
limitations ... the courts would be called upon to decide abstract questions of wide public
significance even though other governmental institutions may be more competent to address the
questions and even though judicial intervention may be unnecessary to protect individual
rights.” Id. at 500; see RMA Ventures California v. SunAmerica Life Ins. Co., 576 F.3d 1070,
1073 (10th Cir. 2009) (“A well-founded prudential-standing limitation is that litigants cannot sue
in federal court to enforce the rights of others.”).
But claims brought on behalf of third parties are not always barred. In limited
circumstances, third-party standing is permissible if a litigant can show it satisfies the
requirements of Article III standing, and (1) it has a “‘close’ relationship” with the person who
possesses the right, and (2) there is a “‘hindrance’ to the possessor’s ability to protect his own
interests.” Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004). Third-party standing is more likely
7 The State Defendants do not appear to challenge the theoretical ability of political subdivisions
to maintain Fourteenth Amendment claims on behalf of individuals, only that third-party
standing does not exist in this particular case.
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when “enforcement of the challenged restriction against the litigant would result indirectly in the
violation of third parties’ rights.” Id. (emphasis in original) (quoting Warth, 422 U.S. at 510).
Assuming without deciding that Plaintiffs can show Article III standing here, the Court considers
the closeness and hindrance questions in turn.
A. Closeness
Defendants argue the closeness prong is not met because the School Districts’ interests
do not fully align with the interests of all students. This is because the policy (and in turn this
suit) cuts against, for example, the interests of transgender students seeking to play on a sports
team or use a gender-segregated facility that aligns with their gender identity, but not their
biological sex. (Doc. No. 36 at 13–14.) According to Defendants, this conflict prevents Plaintiffs
from claiming a sufficiently “close” relationship with their students.
Plaintiffs respond that there cannot be a conflict of interest because School Districts “do
not seek to vindicate the rights of their transgender students.” (See Doc. No. 46 at 10.) Instead,
“Plaintiffs sue to vindicate the Equal Protection rights of their female students who are forced to
play sports with boys.” (Doc. No. 46 at 10.) But this statement conflicts with the Amended
Complaint’s description of Claims 3 and 4, which are brought on behalf of all students. (Doc.
No. 35 at 28, 30.) It also conflicts with the policies in question, which bar transgender girls and
boys from competing with, or sharing a locker or hotel room with, those of the same gender
identity but different biological sex. (Id. at ¶ 43.)
During the Motion Hearing, Plaintiffs’ counsel distanced himself from these conflicting
statements, saying they were “unintentionally misleading,” or “shorthand[ ]” for Plaintiffs’
underlying sex discrimination theory. (Audio Record at 10:46:30–10:47:40.) At that time,
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Plaintiffs’ counsel re-committed to the position that the claims are brought on behalf of all
students, explaining that Claims 3 and 4 are “brought on behalf of all girl and boy students, so
that’s all students effectively,” and that gender identity is a “different category and status all
together.” (Audio Record at 10:48:10–10:48:30.) For purposes of this Motion, the Court accepts
counsel’s proffer that Claims 3 and 4 are brought on behalf of all students, and that any
statements to the contrary were inadvertent.
Whether a relationship between a third party and a litigant is “close” depends on whether
the “enjoyment of the [third party’s] right is inextricably bound up with the activity the litigant
wishes to pursue.” Singleton v. Wulff, 428 U.S. 106, 114 (1976). The question is whether there is
a “congruence of interests,” not necessarily whether the plaintiff and third party are “close” in a
colloquial sense. Powers v. Ohio, 499 U.S. 400, 414 (1991) (finding a criminal defendant had
third-party standing to raise equal protections claims of jurors purportedly excluded because of
their race); see Craig v. Boren, 429 U.S. 190, (1976) (allowing a beer vendor to assert the equal
protection rights of young men in challenging a law that allowed women aged eighteen to
twenty-one years old, but not men of the same ages, to purchase low-alcohol beer).
Under some circumstances, a lawyer-client relationship, see U.S. Dep’t of Labor v.
Triplett, 494 U.S. 715 (1990), or doctor-patient relationship, see Aid for Women v. Foulston, 441
F.3d 1101 (10th Cir. 2006), are sufficiently close to confer standing. And “teachers may have a
sufficiently close relationship to their students to satisfy the first prong of the test for third-party
standing.” Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 208 (6th Cir. 2011). But
a conflict of interest generally counsels against a finding of closeness. See Amato v. Wilentz, 952
F.2d 742, 750 (3d Cir. 1991) (“[G]enuine conflicts strongly counsel against third party
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standing.”); Canfield Aviation, Inc. v. Nat'l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988)
(saying the litigant and third party must “have interests which are aligned”); Al-Aulaqi v. Obama,
727 F. Supp. 2d 1, 33 (D.D.C. 2010) (saying courts must “deny third party standing where the
litigant’s ‘interests in the subject of [the] suit to some extent conflict with those of the [third
parties] whose rights [the litigant] purports to advance.’” (quoting Clifton Terrace Assocs., Ltd.
v. United Tech. Corp., 929 F.2d 714, 722 (D.C. Cir. 1991) (internal citations omitted))). Indeed,
there should be “an identity of interests between the parties such that the plaintiff will act as an
effective advocate of the third party’s interests.” Lepelletier v. FDIC, 164 F.3d 37, 44 (D.C. Cir.
1999); see, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004) (finding that a
parent did not have standing to vindicate the rights of his daughter because the interests of the
parties “[were] not parallel and, indeed, [were] potentially in conflict”), abrogated on other
grounds by Lexmark, 572 U.S. 118.
Here, Plaintiffs bring Claims 3 and 4 on behalf of all students, but their interests do not
align with all students. Plaintiffs’ policies necessarily cut against the interests of transgender
students who seek to compete on teams or use facilities that align with their gender identity. The
policies may also cut against the interests of students who seek inclusivity in school-sponsored
activities. Plaintiffs argue that by this logic, “a school should be prohibited from challenging a
racist statute that favored its white students over its black ones.” (Doc. No. 46 at 10 (citing
Richmond, Va. v. Baliles, 829 F.2d 1308, 1310 (4th Cir. 1987) (in which the Fourth Circuit
allowed a school to maintain a third-party claim challenging an ineffective desegregation plan on
behalf of “the white and black students of Richmond”)).) But in making this argument, Plaintiffs
overlook a critical distinction. In race desegregation cases, all students shared a common interest
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in equal access to education. Even students opposed to desegregation could accept equality as a
governing principle. Here, however, there is no such unifying principle underpinning the
litigation.
Plaintiffs’ allegations suggest that the unifying principle here, may be the avoidance of an
unfair advantage. (See Doc. No. 35 at ¶ 51 (“Biological differences between boys and girls mean
that the average boy will have a competitive advantage over the average girl and that boys would
threaten to meaningfully displace girls in athletic competition if allowed to compete against
them.”).) But even that construction does not surface a unifying principle because it overlooks
the transgender boy who seeks to compete on a boys’ sports team and, by Plaintiffs’ own logic,
would be competitively disadvantaged.
Thus, the only way to construe Plaintiffs’ claims is that the underlying normative
principle is segregation itself. But not all students have a shared interest in separating students by
biological sex. Indeed, the normative principle of separation by biological sex is precisely the
opposite of unifying. It is—by Plaintiffs’ own admission—the subject of meaningful
disagreement. (See Doc. No. 46 at 11 (arguing there is “substantial stigma surrounding
opposition to male participation in female sports and transgender ideology in general”).) Thus,
the analogy to race desegregation cases does not save Plaintiffs’ claims.
In this case, the School Districts may be “close” to students in a colloquial sense, but
their interests are not congruent with those of “all students,” the group on whose behalf Plaintiffs
purport to litigate. Moreover, given Plaintiffs’ own admission that this issue is divisive and likely
to engender opposition, it is highly likely that the interests of some students are diametrically
opposed to, and thus in conflict with, Plaintiffs’ position in this litigation. In other words,
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Plaintiffs cannot act as effective advocates for “all students,” the closeness prong is not met, and
Plaintiffs lack prudential standing. See Aid for Women, 441 F.3d at 1111–12 (noting a plaintiff
must show both closeness and hindrance to have third-party standing).
B. 	Hindrance
Although the lack of closeness is dispositive, the Court will address Plaintiffs’ hindrance
arguments as well.
Courts decline to find third-party standing where there is “no indication … that the [third
parties] face any obstacle in litigating their rights themselves.” Smith, 641 F.3d at 208–09; see
also Singleton, 428 U.S. at 116 (“Even where the relationship is close, the reasons for requiring
persons to assert their own rights will generally still apply.”). Conversely, where the obstacles or
“hindrance” that a third party faces in pursuing their own litigation is meaningful (even if not
insurmountable), courts will find third-party standing. See Singleton, 428 U.S. at 117.
Here, Plaintiffs say the negative publicity and scrutiny that a student plaintiff would
suffer is significant enough to deter any student from bringing such a case. (Doc. No. 46 at 10–
11.) Plaintiffs also argue the limited duration of student enrollment creates a risk of mootness
before full adjudication. (Id. at 11–12.)
It is true that student plaintiffs in cases such as this are likely to receive negative public
attention. See Little v. Hecox, 2025 WL 2597331, at *3 (seeking voluntary dismissal on mootness
grounds in an analogous case before the Supreme Court and noting that the named college
student plaintiff had come “under negative public scrutiny” that “will distract her from her
schoolwork and prevent her from meeting her academic and personal goals”). But Plaintiffs do
not direct the Court to any case finding that negative attention alone is sufficient. The cases
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Plaintiffs rely on involve additional considerations, including privacy interests closely tied to the
claims at issue. See, e.g., Singleton, 428 U.S. at 117 (noting a third party seeking an abortion
“may be chilled” by a desire to protect the privacy of her decision, and further noting the
“imminent mootness” connected to pregnancy-based claims); Griswold v. Connecticut, 381 U.S.
479, 481 (1965) (involving privacy interests in marriage); Pennsylvania Psychiatric Soc. v.
Green Spring Health Servs., Inc., 280 F.3d 278, 290 (3d Cir. 2002) (involving privacy interests
in receiving mental health services).8
It is also worth noting that today’s students engage with the world in ways that are
meaningfully different from past generations. Through social media and online platforms, young
people routinely exchange ideas, organize around shared interests, and express views on social,
cultural, and civic issues. While these tools and platforms have drawn significant criticism and
present well-documented risks, they also help students find and use their voices publicly, often
with a certain level of confidence that comes from knowing others share their perspectives.
8 Plaintiffs also cite Exodus Refugee Immigration, Inc. v. Pence, a non-precedential out-of-
district decision involving Syrian refugees seeking to block Indiana’s governor from stopping
state agency distributions of federal grant funds to local refugee resettlement agencies. 165 F.
Supp. 3d 718, 723 (S.D. Ind.), aff’d, 838 F.3d 902 (7th Cir. 2016) (standing was not addressed by
the circuit court). In Exodus Refugee, a resettlement agency was granted third-party standing on
behalf of the Syrian refugees. Though it obviously does not bind this Court, the analysis in
Exodus Refugee comes the closest to supporting Plaintiffs’ position that negative attention on its
own can support a hindrance finding. See id. at 732 (noting that the refugees would be injured by
the “attention ... that this suit would necessarily bring”). But even that case involved additional
considerations. For example, the court noted that “newly arrived refugees, escaping political or
religious persecution” might be deterred if their refugee status could be jeopardized by the suit.
Id. The considerations in Exodus Refugee, are not present here. See generally League of Women
Voters of Minnesota Educ. Fund v. Simon, 2021 WL 1175234, at *10 (D. Minn. Mar. 29, 2021)
(rejecting a third-party standing argument that cited Exodus Refugee and was predicated on
“avoid[ing] the publicity and controversy of litigation,” in part because the facts of Exodus
Refugee were “[not] comparable”).
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A few decades ago, by contrast, students had fewer opportunities to find support beyond
their schools or communities. Without the internet or social media, it was far more difficult to
connect with those who shared similar views (particularly on sensitive or hotly contested issues).
Today’s interconnectedness helps young minds find strength in one another. Students today, far
better than students in the pre-internet era, understand that even if their views are not “popular”
they are not alone. This knowledge helps them speak up and speak out even when their views are
not widely shared in their immediate circles. Against that backdrop, the argument that negative
publicity and scrutiny will necessarily deter students from bringing a case, is less persuasive.9
Finally, Plaintiffs’ fear of the “inevitable mootness” falls flat. (Doc. No. 46 at 11–12.) As
the State Defendants point out, a student has up to thirteen years (kindergarten through twelve
grade) to challenge the policies. And, even if the class of potential plaintiffs were limited to high
schoolers, four years is not such a limited period. See, e.g., Doe v. Madison Sch. Dist. No. 321,
177 F.3d 789, 798 (9th Cir. 1999) (finding that high school was “not so inherently limited in
duration” that an action challenging use of prayer during graduation ceremonies “will become
moot before the completion of appellate review[,]” and noting that “several” similar cases had
been fully litigated (internal quotation marks omitted)). Cf. Singleton, 428 U.S. at 117 (finding
the limited window of pregnancy would result in mootness).10
9 The Court acknowledges the double-edged sword of web interconnectedness. On the one hand,
it can make people feel closer to one another notwithstanding geographic, demographic, and
other barriers. On the other hand, it can amplify the spotlight and have its own deterrent effect.
However, a natural self-selection process would likely surface student plaintiffs who find power
and support in their online communities, rather than plaintiffs who feel deterred by the spotlight.
10 Both of Plaintiffs’ hindrance arguments are undercut by an additional fact: multiple student
suits of analogous subject matter have been filed and litigated across the country in recent years.
See, e.g., Soule v. Connecticut Ass’n of Sch., Inc., 90 F.4th 34 (2d Cir. 2023) (where high school
athletes challenged a policy of allowing participation consistent with gender identity); B.P.J. by
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In sum, though concerns about public scrutiny and the avoidance of mootness are
certainly relevant considerations for a student plaintiff, neither consideration—separately or
together—rise to the level of a meaningful obstacle that warrants third-party standing. See Aid
for Women, 441 F.3d at 1113–14.
CONCLUSION
For the foregoing reasons the Court respectfully RECOMMENDS that the State
Defendants’ Joint Motion to Dismiss the Amended Complaint (Doc. No. 36) be GRANTED and
Plaintiffs’ claims be DISMISSED with prejudice.11
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
Jackson v. W. Virginia State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024) (where a middle school
student challenged a state law preventing transgender girls from playing on girls athletic teams),
cert. granted sub nom. W. Virginia v. B. P. J. by Jackson, 222 L. Ed. 2d 1154 (July 3, 2025);
D.N. by Jessica N. v. DeSantis, 762 F. Supp. 3d 1219, 1225 (S.D. Fla. 2024) (where a high
school student challenged a state law preventing transgender girls from playing on girls athletic
teams); Slusser v. Mountain W. Conf., 2024 WL 4876221, at *1 (D. Colo. Nov. 25, 2024) (where
college athletes challenged a policy).
11 Because the prudential standing analysis goes to the merits of a claim, a with-prejudice
dismissal is appropriate. See VR Acquisitions, 853 F.3d at 1149 (affirming the lower court’s
with-prejudice dismissal for lack of prudential standing); Advanced Exteriors, Inc. v. Allstate
Vehicle & Prop. Ins. Co., 2022 WL 3577260, at *6 (D. Colo. Aug. 19, 2022) (“A dismissal for
lack of prudential standing is a dismissal with prejudice.”).
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report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 13 th day of January, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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