In a stroke of judicial sanity, the en banc Eleventh Circuit ruled last Thursday (in Adams v. School Board of St. Johns County) that a public school does not violate the Equal Protection Clause or Title IX when it separates school bathroom based on sex. It rejected the claims brought by Drew Adams, a so-called “transgender boy”—i.e., a girl who identifies as a boy—who objected to being barred from the boys’ restrooms and to instead having the choice to use either the girls’ restrooms or the single-stall restrooms that the school made available for students who preferred not to use the restrooms that correspond with their sex.
The Eleventh Circuit divided 7 to 4 along ideological lines. Judge Barbara Lagoa wrote the majority opinion. Each of the dissenters wrote a dissent; two judges joined Judge Adalberto Jordan’s dissent, and one of them also joined most of Judge Jill Pryor’s dissent.
Judge Lagoa also wrote a special concurrence that addressed what a contrary ruling on Title IX would mean for girls’ and women’s rights and sports. I will discuss her special concurrence and Judge Jill Pryor’s response to it in a follow-up post.
Here is a quick summary of Judge Lagoa’s majority ruling, with substantial excerpts:
1. The school’s bathroom policy does not violate the Equal Protection Clause because it “clears the hurdle of intermediate scrutiny” and “does not discriminate against transgender students.”
a. The bathroom policy classifies on the basis of sex. It satisfies intermediate scrutiny because it “advances the important governmental objective of protecting students’ privacy in school bathrooms and does so in a manner substantially related to that objective.”
As Justice Thurgood Marshall observed, “a sign that says ‘men only’ looks very different on a bathroom door than a courthouse door.” That the protection of individual privacy will sometimes require segregation between the sexes is “beyond doubt,” as then-professor Ruth Bader Ginsburg recognized in her advocacy of the Equal Rights Amendment. “It is no surprise, then, that the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence.” “The Supreme Court acknowledged this when it stated [in an opinion by Justice Ginsburg] that admitting women to the Virginia Military Institute for the first time ‘would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.’”
b. The bathroom policy does not discriminate against transgender students. It classifies on the basis of sex, not transgender status or gender identity. The Supreme Court’s ruling in Bostock does not hold to the contrary:
While Bostock held that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex,” … [t]his appeal centers on the converse of that statement—whether discrimination based on biological sex necessarily entails discrimination based on transgender status. It does not—a policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender status…. Because the bathroom policy divides students into two groups, both of which include transgender students, there is a “lack of identity” between the policy and transgender status, as the bathroom options are “equivalent to those provided to all” students of the same biological sex. [Cleaned up.]
“[T]he contention that the School Board’s bathroom policy relied on impermissible stereotypes associated with Adams’s transgender status is wrong. The bathroom policy does not depend in any way on how students act or identify.”
“At most, Adams’s challenge amounts to a claim that the bathroom policy has a disparate impact on the transgender students in the School District. And a disparate impact alone does not violate the Constitution. There is no evidence suggesting that the School Board enacted the bathroom policy ‘because of . . . its adverse effects upon’ transgender students.”
2. The bathroom policy does not violate Title IX. Title IX provides an express carve-out with respect to “living facilities,” and the regulations implementing Title IX explicitly permit schools receiving federal funds to provide “separate toilet, locker room, and shower facilities on the basis of sex.” The word “sex” within the meaning of Title IX unambiguously means biological sex. (The Court in Bostock likewise “proceeded on the assumption” that “sex” in Title VII means biological sex.)
“Reading ‘sex’ to include ‘gender identity,’ and moving beyond a biological understanding of ‘sex,’ would provide more protection against discrimination on the basis of transgender status under the statute and its implementing regulations than it would against discrimination on the basis of sex.”
Even if Title IX were unclear, the school district would still win, as the clear-statement rule under the Spending Clause means that Congress can’t impose a condition on the grant of federal funds to the states unless it does so unambiguously.
A contrary ruling under Title IX “would, at the very least, generally impact living facilities, locker rooms, and showers, in addition to bathrooms, at schools across the country—affecting students in kindergarten through the post-graduate level.” It also “would have broad implications for sex-separated sports teams at institutions subject to Title IX, including public schools and public and private universities.”