Biden Officials to Back Trans Student in Florida Bathroom Fight

A Florida high school’s policy that barred a transgender student from using the boys’ bathroom violated federal law because he was a boy “socially, physically, medically, and on legal documents,” the Justice Department will argue Tuesday.

The St. John’s County School Board’s policy restricting bathroom use by “biological sex” is only valid under the Equal Protection Clause of the U.S. Constitution if it serves an important governmental interest, the DOJ said in a brief in advance of oral argument before the full U.S. Court of Appeals for the Eleventh Circuit.

A divided three-judge panel of the court twice affirmed a win for Drew Adams on his equal protection claim and the DOJ has been granted special permission to present live argument to a 12-judge court when it rehears the case Feb. 22.

The student privacy interest the board cites isn’t significantly furthered by its bathroom policy because all of the bathrooms in the high school Adams began attending as he was transitioning from female to male had private, individual stalls, the DOJ said.

Those stalls were designed to prevent exposure of a student’s anatomy and there’s no evidence Adams was more likely to violate another student’s privacy than a cisgender boy would be, or that any misconduct by Adams couldn’t have been handled under the school’s existing disciplinary process, the DOJ said.

The board’s policy also viewed the sex designated on students’ enrollment forms as the determining factor in which bathrooms they could use, the DOJ said.

But Adams enrolled in the county’s school system when he was in fourth grade, before he came out as transgender in eighth grade and began taking testosterone, had a double mastectomy, and took other steps to transition to male, it said. Those steps included changing his sex on his driver’s license and birth certificate to male before he started at Allen D. Nease High School in Ponte Vedra Beach, the DOJ said.

The board refused to consider Adams’ updated sex designation when it forced him to use the girls’ bathroom or one of the gender-neutral bathrooms at Nease, the DOJ said. That sort of arbitrary approach is inadequate to show the policy advances the privacy interest the board claims, the department said.

Biological Differences

The school board will tell the en banc Eleventh Circuit that the policy is based on biological differences between the sexes that the U.S. Supreme Court has cautioned against reducing “to nothing.”

There is no dispute that school boards can prohibit boys from using the girls’ bathroom and vice versa, the school board said in its pre-argument briefing. That there’s a privacy interest when using a bathroom and that guarding that privacy is a significant governmental interest has been understood and “commonplace across societies and throughout history,” it said.

Physiological and anatomical differences between the sexes are the reason for that common practice and the bathroom stalls the U.S. government points to don’t adequately protect student privacy, the board said.

If they did, there would be no need for separate boys’ and girls’ bathrooms at all because all of the sex-specific bathrooms at Nease High have stalls, it said.

And the boys’ bathrooms also have urinals, which aren’t enclosed within stalls or partitioned with dividers, it said.

Adams had choices if he was uncomfortable using the girls’ bathrooms as his school had “11 single-stall, gender-neutral bathrooms located on the first floor,” the board said.

That’s more than the 10 stalls in the boys’ bathrooms, it said.

The policy was designed to best serve the interests of all students in the school district, it said. At the time of the trial in Adams’ case, only 16 of the district’s 40,000 students identified as transgender, the board said.

No policy is perfect and the equal protection clause doesn’t demand perfection, it said.

Impact of 2020 SCOTUS Ruling

The DOJ will also say the policy violated Adams’ rights under Title IX of the 1972 Educational Amendments Act because it discriminated against him based on sex.

The Supreme Court decided Bostock v. Clayton County in 2020 while the board’s appeal was pending, the DOJ said. Bostock held that “sex” no longer is considered to simply refer to biological or birth sex but to also include a person’s sexual orientation and gender identity, it said.

The board treated Adams differently than it did cisgender boys to whom he was similarly situated as to bathroom use merely because he was assigned a different sex at birth, the DOJ said.

But Title IX and regulations implementing it expressly authorize separate bathrooms based on sex at schools, the board said. It’s sex-specific bathroom-use policy therefore isn’t “something that Title IX prohibits,” it said.

And unlike the employment discrimination law at issue in Bostock, Title IX was passed under the Constitution’s Spending Clause, the board said.

The meaning of “sex” under Title IX thus isn’t as fluid as its meaning in the employment context because Congress has “limited ability to subject entities to federal jurisdiction for breaches of Spending Clause legislation” unless such entities know what they’re agreeing to, it said.

The board could only have agreed to prohibitions against discrimination because of sex based on the accepted meaning of the term in 1972 when the law was passed, which was biological sex, it said.

That argument was forfeited because the board didn’t raise it before the district court, the DOJ said.

DOJ attorneys in Washington represent the government. Lambda Legal Defense and Education Fund Inc., Pillsbury Winthrop Shaw Pittman LLP, and Kirsten Doolittle of Jacksonville, Fla., represent Adams. Sniffen & Spellman PA represents the school board.

The case is Adams v. Sch. Bd. of St. Johns Cty., Fla., 11th Cir., No. 18-13592, oral argument on rehearing en banc 2/22/22.