In an opinion last Friday in Adams v. School Board of St. Johns County, a divided panel of the Eleventh Circuit ruled that a school board violated the Equal Protection and Title IX rights of a transgender student, Drew Adams—a girl who identifies as male—by barring her from using the boys’ restroom. Judge Beverly Martin wrote the majority opinion, joined by Judge Jill Pryor.
Here’s how Chief Judge William Pryor concludes his excellent dissent:
The majority transforms an appeal that it should have resolved with straightforward applications of intermediate scrutiny and statutory interpretation into something unrecognizable. Almost no aspect of its analysis emerges unscathed. The majority misunderstands the policy at issue, ignores decades of precedent, dismisses any sex-specific interest in bathroom privacy, and flouts foundational principles of statutory interpretation. In the process, it issues a holding with radical consequences for sex-separated bathrooms. But for all of its errors, the majority opinion cannot obscure what should have been the bottom line of this appeal: there is nothing unlawful, under either the Constitution or federal law, about a policy that separates bathrooms for schoolchildren on the basis of sex.
I believe that the dissent clearly gets things right. (Lest there be confusion between the joining judge and the dissenter: All further references to “Pryor” in this post are to the dissent.)
Let’s start with the question whether the school’s policy of separate bathrooms for boys and girls—a policy that the panel majority recognizes to be “ubiquitous”—violates Adams’s Equal Protection rights under the Fourteenth Amendment of the Constitution. It’s noteworthy that Adams (as the majority notes) “does not question” this general policy. She complains only that it cannot be applied to bar her from using the boys’ restroom—in other words, that she must be deemed a boy for purposes of the policy.
The panel majority contends that the school’s policy “singles out transgender students for differential treatment because they are transgender.” (Emphasis in original.) But as Pryor explains in his dissent, the school policy “classifies on the basis of sex,” not transgender status. It “easily satisfies intermediate scrutiny,” as it “serves the important objectives of protecting the interests of children in using the bathroom away from the opposite sex and in shielding their bodies from exposure to the opposite sex.” (As Pryor notes, Ruth Bader Ginsburg, as a law professor, emphasized that “regard for individual privacy” allows, and in some situations requires, sex-segregated places to “perform personal bodily functions,” and her majority opinion for the Supreme Court in the VMI case acknowledges the same.) Pryor further points out that the “special burden” that the majority claims that the school imposes on transgender students—permission to use a “gender-neutral restroom” in addition to the restroom corresponding to their biological sex—is in fact an “alternative,” an additional option, that is not available to other students.
As for Title IX, which generally bars schools that receive federal funds from discriminating on the basis of sex: Again, as the majority emphasizes, Adams “does not argue that providing separate restrooms for boys and girls violates Title IX.” But if Title IX allows school restrooms to be assigned on the basis of sex, it obviously cannot at the same time require them to be assigned on the basis of a gender identity that sometimes differs from sex. And it’s clear, as Pryor explains, that “sex” in Title IX does not mean gender identity.
An aside: Under the Supreme Court’s wooden analysis of Title VII in Bostock v. Clayton County, the question whether Title IX allows schools to maintain separate restrooms for boys and girls presents some serious complications. As an exception to its general ban on discrimination on the basis of sex, Title IX allows schools to have “separate living facilities for the different sexes.” Regulations implementing Title IX allow “separate toilet, locker room, and shower facilities on the basis of sex,” so long as such facilities for students of one sex are comparable to those for students of the other sex. But it’s far from clear that those regulations are valid under the reasoning of Bostock insofar as they apply outside of “living facilities.” That Bostock puts in jeopardy the longstanding fundamental practice of sex-separated toilet, locker room, and shower facilities is a testament to how reckless it is.
Let’s hope that the en banc Eleventh Circuit promptly corrects the panel’s serious errors.