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Transgender Bathroom Ruling Retains Uncertainty Over Path Forward

Jan. 6, 2023, 10:40 AM

The battle over transgender students’ access to bathrooms that correspond to their gender identity has created a circuit split and teed up a potential US Supreme Court showdown that could have implications in the employment context.

A recent en banc decision by the US Court of Appeals for the Eleventh Circuit against Florida transgender high school student Drew Adams has set the stage for a review by the justices, who have repeatedly declined in recent years to wade into similar disputes. But the posture of the case, combined with the high court’s current makeup, could keep that particular dispute at bay for the time being.

The Eleventh Circuit concluded that separating school bathrooms based on biological sex is constitutional and doesn’t violate Title IX of the Education Amendments Act of 1972, a federal law that bans discrimination on the basis of sex and gender identity in schools that receive federal funding. The country has a long tradition of separating sexes in certain situations, including in the use of public bathrooms, the majority said.

The majority rejected Adams’ reliance on the high court’s 2020 landmark decision in Bostock v. Clayton County, which held that the sex discrimination prohibitions in Title VII of the 1964 Civil Rights Act cover gender identity and sexual orientation.

Jackie Gharapour Wernz, a partner at Thompson & Horton LLP, agreed that the school setting isn’t the same as the workplace. Bostock expressly held that the issue of sex-segregated locker rooms and bathrooms weren’t at issue in that case, said Wernz, a former civil rights attorney with the US Department of Education’s Office for Civil Rights.

But “I think more guidance for school administrators is needed because the uncertainties around this issue just makes litigation more expensive,” she said.

That also means transgender students “are going be put in some difficult situations until” there’s clear uniform guidance, said Littler Mendelson PC shareholder Mark T. Phillis, who co-chairs the firm’s diversity and inclusion council.

Tricky Legal Path

Advocates on both sides of the issue have long wanted the Supreme Court to provide further clarity on protections for transgender students under Title IX and the US Constitution. But the high court’s six-justice conservative majority will likely discourage transgender rights advocates from seeking further review at the moment despite the circuit split, leaving that uncertainty in place.

“That is certainly something the advocacy groups will be looking at, given some of the rulings from this court,” Phillis said. “They may be concerned that if this case goes up,” the majority could affirm the en banc decision.

Saba Bireda, a partner at worker-side firm Sanford Heisler Sharp LLP, said the new circuit split has further heightened the stakes for transgender rights.

The Supreme Court’s conservative majority has repeatedly ruled against LGBT rights advocates, and many now fear that a ruling could potentially overturn favorable decisions by other appeals courts, she said.

“I think there’s certainly a pathway for the majority” to accept the Eleventh Circuit’s analysis, Bireda said. “I don’t think this would be helpful for advocates” to appeal.

Phillis said the Adams case “highlights the struggle that school districts are facing and their desire for some clear guidance in this area.”

Tara Borelli, a senior counsel at Lambda Legal who represents Adams, said in a statement that last week’s “aberrant ruling contradicts the decisions of every other circuit to consider the question across the country.”

“Transgender students deserve the same dignity and opportunity to thrive in school as all other students, and Lambda Legal’s work will not be done until that is a lived reality for every student,” the statement said.

Borelli didn’t say whether an appeal will be filed. Representatives for the school did not immediately reply to a request for comment.

Employer Guidance

In the meantime, Wernz said the Eleventh Circuit’s decision may offer some guidance to employers and courts in other jurisdictions that don’t have case law on workplace bathroom polices.

You could argue that Bostock didn’t answer whether a transgender worker should be allowed to use a bathroom in the workplace that matches their gender identity, she said.

Although the Eleventh Circuit’s analysis was based on the classroom context and school district’s privacy interests, “I could see jurisdictions with a conservative bench be amenable to the idea that bathrooms have historically been separated” based on biological sex, and so should continue to do so in the workplace as well, she said.

“I think they may look to this case for that type of argument,” Wernz added.

“This is an incredibly important question for school administrators. And to the extent that it could have ripple effects in the workplace, I hope the Supreme Court will add more guidance,” she said.

Circuit Split

The Eleventh Circuit’s decision, which is binding in Alabama, Florida, and Georgia, stands in sharp contrast to rulings in the Second, Fourth, Seventh, and Ninth circuits that sided with transgender students.

At least the Fourth Circuit, in Grimm v. Gloucester County School Board, relied on Bostock’s reasoning as a basis for its ruling.

Bostock has also influenced federal agency statements that prohibitions on discrimination in housing, schools, and other non-employment areas extend to sexual orientation and gender identity.

Anthony Michael Kreis, a law professor at Georgia State University, said courts generally interpret Title IX and Title VII very similarly. That means a narrow Supreme Court interpretation of Title IX could potentially affect Title VII’s employment protections as well.

“That makes me very concerned as somebody who studies and wants to advance better protections for employment on the antidiscrimination front,” he said. “The slope is much more slippery if you have a negative ruling that can easily translate into another body of statuary interpretation.”

“What advocates might likely want to do is press on in favorable jurisdictions to get favorable statutory protections in state and federal laws,” Kreis said.

To contact the reporter on this story: Khorri Atkinson in Washington at katkinson@bloombergindustry.com

To contact the editor responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloombergindustry.com