Transgender Bathroom Ban Doesn’t Discriminate, Court Holds (1)

Separating school bathrooms based on biological sex is constitutional and doesn’t violate Title IX, an en banc Eleventh Circuit said Friday in a divided ruling that may have widespread consequences in Alabama, Florida, and Georgia.

A Florida school board didn’t violate transgender high school student Drew Adams’ equal protection rights when it prohibited him from using the boys’ bathrooms at Allen D. Nease High School, the court said, reversing a trial court.

The US has a long tradition of separating sexes in certain situations, especially when it comes to the use of public bathrooms, Judge Barbara Lagoa said for the seven-judge US Court of Appeals for the Eleventh Circuit majority. Such sex-based classifications have never necessarily run afoul of the Equal Protection Clause, she said.

St. Johns County School Board showed its policy restricting bathroom use by “biological sex” was constitutional because it significantly furthered the student privacy interest the board claimed, Lagoa said. That interest included allowing students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex—an interest courts have long deemed valid “in a variety of legal contexts,” Lagoa said.

The school board’s interest was adequately served by the fact that Adams used individual stalls during the brief time he used the boys’ bathrooms at Nease, the judge said. Students use bathrooms for many purposes, including changing clothes, and the male bathrooms also had undivided urinals, she said.

Gender Identity vs. ‘Biological Sex’

The board’s policy didn’t discriminate based on sex nor on transgender status, the majority said. The policy is based on biological sex, not gender identity, it said. “Both sides of the classification—biological males and biological females—include transgender students,” it added.

Adams’ reliance on the US Supreme Court’s 2020 decision in Bostock v. Clayton County, which held under federal job discrimination law that prohibited sex discrimination includes bias based on gender identity or sexual orientation, was misplaced, Lagoa said. The school setting “is not the workplace,” and Bostock expressly declined to tackle the issue of sex-segregated locker rooms and bathrooms, she said.

Adams’ case also involved the distinct issue of whether “biological sex” includes gender identity, the majority said. And the Supreme Court has “repeatedly recognized the biological differences between the sexes,” it said.

There was no evidence the school board’s policy was directed at transgender status, Lagoa said. Rather, the policy was adopted after the board went to “great lengths” to accommodate LGBTQ students, she said. That included working with such students and their advocates, researching emerging LGBTQ issues, attending LGBTQ conferences, and forming a task force, the majority said

All students, including the school district’s 16 transgender students, were permitted to use their school’s gender-neutral bathrooms or the bathrooms corresponding with their biological sex, Lagoa said. That policy decision took into account the privacy interests of the school districts other 40,000 students, she said.

The policy likewise didn’t violate Title IX of the 1972 Education Amendments Act because that law contains express carve-outs with regard to bathrooms, locker rooms, living facilities, Lagoa said. Bostock’s recent holding with regard to the meaning of “sex” can’t be imported to Title IX in light of those carve-outs, she said.

Judges William H. Pryor Jr., Kevin C. Newsom, Elizabeth L. Branch, Britt C. Grant, Robert J. Luck, and Andrew L. Brasher joined the majority opinion.

In a separate concurrence opinion, Lagoa said that equating sex to gender identity under Title IX would have a harmful impact” on girls’ and women’s rights and sports.”

Multiple Dissents

Judges Charles R. Wilson, Adalberto Jordan, Robin S. Rosenbaum, and Jill A. Pryor dissented.

The school board’s bathroom policy is unconstitutional because it allowed transgender students to be treated as the sex under which they identify so long as that’s how they registered when they enrolled in the school system, which wasn’t true of Adams, Jordan said in a dissenn joined by three other judges. That meant the policy didn’t really serve the privacy interest cited by the board, Jordan said.

Jill Pryor, in a dissent partly joined by Rosenbaum, said the majority declared without support that biological sex “is comprised solely of chromosomal structure and birth-assigned sex.” Title IX’s carve-outs for segregated rooms and facilities don’t address the issue raised in Adams’ case, which wasn’t “the legality of separating bathrooms by sex,” she said.

She also countered the majority’s statement that sex is an immutable trait determined at birth, like race and national origin. The record evidence showed “that gender identity is an immutable, biological component of a person’s sex,” Pryor said.

Wilson agreed in another dissent that medical and other science rebuts the presumption that biological sex is “static” and can be “accurately determined at birth.”

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

The case is Adams v. Sch. Bd. of St. Johns Cty., Fla., 11th Cir., No. 18-13592, 12/30/22.