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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