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Appeals Court Upholds Florida High School “Separating School Bathrooms Based on Biological Sex”

Appeals Court Upholds Florida High School “Separating School Bathrooms Based on Biological Sex”

11th Circuit en banc finds St John’s County, Florida, transgender bathroom policy lawful: “separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.”

The 11th Circuit Court of Appeals, sitting en banc (all judges on the court) has upheld Florida’s St. John’a County school policy of separating bathrooms based on biological sex, rejecting a challenge by a “transgender male” who was denied the opportunity to use the boy’s bathroom. The district provided sex-based (boys and girls) bathrooms as well as single-user gender neutral bathrooms.

While the headlines about the decision refer to a “transgender bathroom policy,” in fact it’s much simpler than that, what the court referred to as the “nearly universal practice of separating school bathrooms based on biological sex.”

Various states weighed in for and against the policy:

The court split 7-4 in the case of Drew Adams v. School Board of St. John’s County, Florida. From the Opinion:

This case involves the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex. This appeal requires us to determine whether separating the use of male and female bathrooms in the public schools based on a student’s biological sex violates (1) the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and (2) Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq . We hold that it does not—separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.

Some interesting background from the Opinion (emphasis added):

Of the 40,000 students attending schools within the School District, around sixteen identify as transgender. Plaintiff-Appellee, Drew Adams, is a transgender boy….

In August 2015, Adams entered ninth grade at Allen D. Nease High School (“Nease”) within the School District. Nease provides female, male, and sex-neutral bathrooms for its 2,450 students. The communal female bathrooms have stalls, and the communal male bathrooms have stalls and undivided urinals. In addition to performing bodily functions in the communal bathrooms, students engage in other activities, like changing their clothes, in those spaces. Single-stall, sex-neutral bathrooms are provided to accommodate any student, including the approximately five transgender students at Nease, who prefer not to use the bathrooms that correspond with their biological sex. The bathrooms at Nease are ordinarily unsupervised. The School Board, like many others, maintains a longstanding, unwritten bathroom policy under which male students must use the male bathroom and female students must use the female bathroom. For purposes of this policy, the School Board distinguishes between boys and girls on the basis of biological sex—which the School Board determines by reference to various documents, including birth certificates, that students submit when they first enroll in the School District.

Privacy concerns were stipulated to be of concern to parents;

The parties stipulate that certain parents of students and students in the St. Johns County School District object to a policy or practice that would allow students to use a bathroom that matches their gender identity as opposed to their sex assigned at birth. These individuals believe that such a practice would violate the bodily privacy rights of students and raise privacy, safety and welfare concerns.

The district’s policy provided for gender neutral facilities:

The School District’s review of LGBTQ student issues culminated in 2015 with the announcement of a set of “Guidelines for LGBTQ students – Follow Best Practices” (the “Best Practices Guidelines”). Under the Best Practices Guidelines, School District personnel, upon request, address students consistent with their gender identity pronouns. The guidelines also allow transgender students to dress in accordance with their gender identities and publicly express their gender identities. Finally, the guidelines formally note that: “Transgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.”

The student’s challenge was upheld at the district court and then by a three-judge appeals panel, in a somewhat tortured history:

The School Board timely appealed the district court’s order. Following oral argument, a divided panel of this Court affirmed the district court over a dissent. Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty. , 968 F.3d 1286, 1292 (11th Cir. 2020); id. at 1311 (Pryor, C.J., dissenting). After a member of this Court withheld the mandate, the panel majority sua sponte withdrew its initial opinion and issued a revised opinion, again affirming the district court over a revised dissent but on grounds that were neither substantively discussed in the initial panel opinion nor substantively made by any party before the district court or this Court.2 Adams ex rel. Kesper bathroom policy—i.e., the policy separating the male and female bathrooms by biological sex instead of transgender status or gender identity. But this case has never been about the enrollment documents policy. This was not the challenge advanced by Adams in the district court. Indeed, Adams centered the district court litigation on the bathroom policy….

Ultimately, Adams maintained, until this en banc proceeding after two prior opinions had been vacated, that this lawsuit was about allowing transgender students to access bathroom facilities that match their gender identities, not revising the means by which the School Board determines biological sex. While Adams now tries to raise a new claim that the enrollment documents policy violates the Equal Protection Clause because it creates an “arbitrary sexbased distinction,” Adams cannot amend the complaint by arguments made in an appellate brief.

In ruling in favor of the school district, the en banc court majority held there was no equal protection violation as the policy advanced an important government interest (the privacy of students) and clearly was tailored to that issue:

There has been a long tradition in this country of separating sexes in some, but not all, circumstances—and public bathrooms are likely the most frequently encountered example….

Ultimately, the School Board believes its bathroom policy is necessary to ensure the privacy and overall welfare of its entire student body under the governing Florida statute. We will not insert ourselves into the School Board’s ongoing development of policies to accommodate students struggling with gender identity issues—unless, of course, the School Board’s policies are unconstitutional, an issue which we now address….

The protection of students’ privacy interests in using the bathroom away from the opposite sex and in shielding their bodies from the opposite sex is obviously an important governmental objective. Indeed, the district court “agree[d] that the School Board has a legitimate interest in protecting student privacy, which extends to bathrooms.” ….

It is no surprise, then, that the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence….

Moreover, courts have long found a privacy interest in shielding one’s body from the opposite sex in a variety of legal contexts…. Having established that the School Board has an important governmental objective in protecting students’ privacy interests in school bathrooms, we must turn to whether the bathroom policy is substantially related to that objective….

The School Board’s bathroom policy is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur. Therefore, the School Board’s bathroom policy satisfies intermediate scrutiny.

The Court also found no Title IX violation, because unlike the employment statute involved in the Bostock SCOTUS decision, Title IX has carve outs that allow differentiation as to the sexes in certain settings:

As such, this appeal requires us to interpret the word “sex” in the context of Title IX and its implementing regulations. We cannot, as the Supreme Court did in Bostock, decide only whether discrimination based on transgender status necessarily equates to discrimination on the basis of sex, as Adams would have us do. 140 S. Ct. at 1739 (“The question isn’t just what ‘sex’ meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions ‘because of’ sex.”). This is because Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for differentiating between the sexes when it comes to separate living and bathroom facilities, among others….

Title IX and its implementing regulations prohibit discrimination on the basis of sex, but they also explicitly permit differentiating between the sexes in certain instances, including school bathrooms, locker rooms, and showers, under various carve-outs. As explained in our discussion about the statutory scheme and purpose of Title IX, transgender persons fall into the preexisting classifications of sex—i.e., male and female. Thus, they are inherently protected under Title IX against discrimination on the basis of sex. But reading “sex” to include “gender identity,” as the district court did, would result in situations where an entity would be prohibited from installing or enforcing the otherwise permissible sex-based carve-outs when the carve-outs come into conflict with a transgender person’s gender identity…..

In sum, commensurate with the plain and ordinary meaning of “sex” in 1972, Title IX allows schools to provide separate bathrooms on the basis of biological sex. That is exactly what the School Board has done in this case; it has provided separate bathrooms for each of the biological sexes. And to accommodate transgender students, the School Board has provided single-stall, sex-neutral bathrooms, which Title IX neither requires nor prohibits. Nothing about this bathroom policy violates Title IX…. Whether Title IX should be amended to equate “gender identity” and “transgender status” with “sex” should be left to Congress— not the courts.

For now, the 11th Circuit refuses to equate “sex” in Title IX with “gender identity.” Bathroom privacy lives, but given how close the en banc court was split, this may be SCOTUS-bound. What a difference a 6-3 majority could make, so that even if Gorsuch does to Title IX what he did to employment discrimination statutes (which I don’t think he will do), there still would be a majority to hold that sex means biological sex.


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If the insane trans morons want to make it an issue of ‘men’ and ‘women’, then we’ll just change the signs on the door to ‘penis’ and ‘vagina’.

The absolute INSANITY of the ‘trans’ crap shows just how far the left will go for the most insane causes.

    The Gentle Grizzly in reply to Olinser. | December 30, 2022 at 8:47 pm

    It’s all so tiresome.

      The sturm und drang is tiresome, yet the issue important. if only for yet another minute minority attempting to force society to disregard millennia of established cultural decisions because they say so.

    ooddballz in reply to Olinser. | December 31, 2022 at 1:15 am

    then we’ll just change the signs on the door to ‘penis’ and ‘vagina’……Nope, XX and XY

    diver64 in reply to Olinser. | December 31, 2022 at 7:26 am

    I’m always amazed that these people run around demanding their “right” to do whatever including using the opposite bathroom. Well, what about the rights of the 98% of us that don’t want to do that? Where is my right??

      The Gentle Grizzly in reply to diver64. | December 31, 2022 at 4:43 pm

      The same as the majority who believe they should have the right to refuse service to anyone. That a privately owned business on private property is not “the public square”.

    Antifundamentalist in reply to Olinser. | December 31, 2022 at 11:15 am

    I’ve been saying that for a couple of years now. I am beginning to believe that is the best way to restore a bit of sanity – “All genders are welcome to use our facilities. However, for the safety and comfort of ALL of our guests, those who currently have a penis must us this restroom, those with vaginas must use that restroom. Any guest who are uncomfortable with this arrangement may use the restroom over there. Thank you. Verbal abuse of the the staff will result in the offender being removed and banned from the property. Thank you.”

This is a no Brainer to me but we live in bizarre world

Sex is male and female. Gender is sex-correlated attributes (e.g. sexual orientation): masculine and feminine. Trans- refers to a state or process of divergence from normal.

Normalize, tolerate, or reject?

Oh, and lower the albinophobic banner, sequester the politically congruent (“=”) precursor, delay the parade without pride.

Progress: one step forward, two steps backward.

    caseoftheblues in reply to n.n. | December 31, 2022 at 11:39 am

    a) that’s not actually accurate and b) it’s what trans activists initially pretend to be saying but is 180 from what they actually want and claim.

Trans could care about the rights of others. Isn’t that nice?

Since there is a unisex bathroom available as an accommodation, no more should be required. What right has been denied? To selfishly disrespect others and invade their privacy to no discernable end?

Appeals Court not wooed by appeal of computer nerd. Says use of bathroom is based on hardware, not sofware.

from page 7.. ( I am appalled at this)

Adams also began taking birth control to stop menstruation
and testosterone to appear more masculine and underwent a “dou-
ble-incision mastectomy” to remove breast tissue. Because Adams
was still just a teenager who had not yet reached the age of ma-
, Adams could not undergo additional surgeries to rework ex-
ternal genitalia.

Some surgeon removed that child’s breasts, which was ok.. but genitalia…. and the “court” is arguing about a place to pee. What the hell.

    Edward in reply to amwick. | December 31, 2022 at 2:02 pm

    Not only a surgeon who performed unnecessary surgery on a child, but what of the parent(s) who apparently approved of the mutilation of her/his/their child?We are long past looking at the looking glass with an eye to going through.

In my day we had to take group showers after gym

It was, to say the least, a way to get use to your make body.

First few showers were interesting, then everybody just got to business to show , dress and get to class..

The difference in her voice after how many years on testosterone is sad… just listen to both videos, it’s obvious

And crazy karen mom

Go pee with the other girls.

ThePrimordialOrderedPair | December 31, 2022 at 1:40 am

based on biological sex

Based on SEX, not “biological sex”. Just using the term :biological sex’ is ceding much of the argument to the deranged perverts, to start. There is “sex”. Period. Guys are guys and girls are girls, no matter what they might want to pretend to be.

And people who let guys in the girls’ bathrooms, as a matter of policy, should be jailed. They are sick and they are criminals.

Male/Female is so basic in biology, to even question or attempt to redefine it as to be absurd. Yet we have presumed educated and high office holders trying to reassign genders.

Go back to labelling the doors “Pointers” and “Setters.”

When did we as a society fall so far down the rabbit hole of ‘equity’ that we can confuse up and down, right and left, and sex and gender?

This person isn’t fully transition as the grade age would be somewhere around fourteen years of age, not old enough for puberty blockers or mutilation.

There was a communal bathroom available but yet this ‘person’ insisted on using the boys. Gender dysphoria is best treated with psychological care and most often, they ‘age out’ of it.

No. Gender isn’t “assigned “ at birth. If anything you are what you are at birth and later ‘assign’ yourself something else. You aren’t Schrödinger’s baby where your physical form is determined by the observing doctor at birth.

MoeHowardwasright | December 31, 2022 at 7:23 am

Maybe just a bit of sanity on this issue. Comports to Title IX seems to me to be the biggest win. While we discuss the school bathrooms, you can be sure this “trans” is using the women’s room at every store in town. Wait until his “Karen” mom is confronted in public.

So a chick in high school can’t get a boyfriend because she is a whining, angry feminist gets a nose ring. That attention seeking move doesn’t work because everyone has one so she signs onto the latest mind virus fad and declares herself a guy. That doesn’t get her enough attention either because so many are on that train already so she sues the school district. Finally, she is getting some attention.

Common sense wins one.

Otto Kringelein | December 31, 2022 at 9:20 am

Kid comes off as an arrogant prick (no pun intended). The sad part? It isn’t even high school any longer. It’s graduated. So the whole lawsuit was moot at this point as there’s no “injury” that it is going to suffer for the school districts bathroom policy. But I guess we have to go through the motions.

    henrybowman in reply to Otto Kringelein. | December 31, 2022 at 10:58 am

    Meanwhile, an adult NY gun owner who had his rights violated for years gets his case up to the Supreme Court, where it dissolves because NY changes its law just before the arguments, and has to suck it up.

In a sane world, this freak’s parents would be sentenced to hard labor for life with no possibility of parole. The freak would be committed to an insane asylum. Think how disruptive and provocative it must be to have this entitled nutcase parading around the school on the lookout always for slights and offensives requiring strict disciplinary action.

    henrybowman in reply to Otto Kringelein. | December 31, 2022 at 11:02 am

    Add this to the rape that occurred in Loudoun County, which the superintendent mendaciously DENIED in public because of the technicality that the perp “wasn’t transgender, he just enjoyed dressing in girls’ clothes.” But that describes like 80% of the “transgenders” out there, so the kid’s “official” status would change every time he changed his mind, possibly many times each day.

Very common sense decision. Sex and gender are not the same. One is male or female at birth and that is sex. Most males display masculine traits while most females display feminine traits. Most people overwhelmingly display the gender traits that correspond to their sex. Some people display a few traits of the opposite sex but that doesn’t alter their sex.

The trans activists want it both ways. They claim gender roles and gender traits are a social construct, not rooted in biological or evolutionary differences while they insist that biological sex is malleable. If there were no difference between the sexes then there would be nothing to alter via behavioral changes much less surgery.

No minor should be undergoing any irreversible alteration whether chemical or surgical. Adults can do as they please with their their own money. If adults want to alter their appearance to make themselves feel better or look more like their ideal then by all means let them write the check. As with bathrooms, locker rooms and pronouns the rest of the world doesn’t owe them understanding or financial support nor should we be forced to unwillingly participate in their cos play.

    Dathurtz in reply to CommoChief. | December 31, 2022 at 10:59 am

    I can’t explain what a man or woman is without using a biological explanation. I can stereotype men and women. I can sound just like an actual, raging sexist.

    My point is that “gender” is useful when it applies to languages, but not useful when it applies to organisms. We shouldn’t even use the word.

And at best, America gains another whiny, annoying beta male.

    DSHornet in reply to henrybowman. | December 31, 2022 at 11:55 am

    No, not a male. Nor a man. Just a mentally deranged individual who wants to be catered by the rest of us.

    Question: Why not just use a stall? Nobody would know and likely wouldn’t care.
    Answer: An opportunity to be noticed and control others would be missed.

    gonzotx in reply to henrybowman. | December 31, 2022 at 2:35 pm


    Don’t give them the language it is a SHE

I was at my local community center yesterday and at the entrance to the men’s room there was a sign “You are safe here.” I wanted to add a smaller sign below it. “All the pervs now use the ladies room.”

I’m confused. Is this an ugly guy or an ugly girl? I have noticed in Portland that ugly guys are the ones who become uglier women.

E. Zach Lee-Wright | January 1, 2023 at 1:45 am

Two years ago I was driving to Colorado Springs. About 70 miles south of there I fueled up at a truck stop and used their large and busy men’s restroom. Three of us guys were waiting for an opening. Then I realized the person using one of the urinals was a woman. She and a female friend had decided to make an excursion into the guy world of truck stop restrooms. But they didn’t think things through very well. They both wore sweatpants. Sweatpants don’t have a fly (zipper) and you have to pull them down to use the urinal. The woman didn’t want to do this so she pretended to be holding her “equipment” and peeing as if she had a fly.

It was clear to all three of us guys (waiting to go) that this was a woman. Then her partner comes out of a stall and washes her hands. I wanted to hear them speak so I asked “Do you feel better?” Using her best deep voice she replied “Yes”. Then I told her, “That’s funny, you don’t look any better.” Well, at least they washed their hands.

Capitalist-Dad | January 1, 2023 at 10:50 am

You have to search harder, but there are still a few slim majorities of judges who don’t automatically sacrifice the normal to the abnormal.

Let’s see: the school already had male, female, and gender-neutral restroom, and it still got sued because some stupid girl egged on by God-knows-what, wants to crash the boys’ bathroom.

If she had won, the stupid boys her age would have had something to say about her rudeness in invading their privacy.

Also if she had one, some boy would inevitably want to crash the girls’ bathroom, maybe even for the purposes of committing a crime (rape, yes, it has happened).

Or, the court could simply affirm the schools’ decision — boys here, girls there, and it you don’t feel good in either place, go here.

If I were the school’s lawyer, I’d be pushing for attorney’s fees.

e pluribus unum | January 1, 2023 at 6:29 pm

A recent survey by an LGBT+group (+ what? I always think. Don’t they know who they are?) claims 20% of 18-34 year olds now identify as being in the non-binary categories.
I guess they don’t believe in evolution. Evolution-deniers I say!
Evolution takes a loooooong time and this unbelievably rapid move to these newly-created identities can be nothing more than mass psychosis. In other words, it’s the cool thing to do. Kids always want to be cool and join that clique.
The bored academics who are hired by similar-thinking hiring committees who don’t want to study anything that might be hard, make up these theories and since the kids want a good grade in an easy course, they eat it up.
Unfortunately, many of them will suffer lifetime medical issues with infections etc., since you simply cannot take muscle and flesh with injections of hormones and such, rearrange it and expect it to act like the organ of the opposite sex.
Do these girls who want to be boys really think biological girls will want to date and marry them later in life? Perhaps we shouldn’t go to teens for advice and deep thoughts.

Nothing is as big a tell as those nose rings.