Caseflicks

Court of Appeals for the Eleventh Circuit • 2022

Drew Adams v. School Board of St. Johns County, Florida

57 F.4th 791

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Takeaway

In short, the en banc Eleventh Circuit held that a school may assign multi-stall bathrooms by biological sex and offer transgender students sex-neutral alternatives without violating either equal protection or Title IX.

Background

Drew Adams is a transgender boy who attended Allen D. Nease High School in St. Johns County, Florida. The School Board maintained an unwritten policy requiring students to use multi-stall bathrooms corresponding to their sex as recorded at enrollment, which the Board treated as biological sex. Nease also provided single-stall, sex-neutral bathrooms. Under the District’s LGBTQ Best Practices Guidelines, transgender students could use those sex-neutral bathrooms and were not required to use bathrooms corresponding to their recorded sex.

Adams enrolled in the District before his transition, with records identifying him as female. When he began high school, he socially transitioned, used male pronouns, and used the boys’ bathroom for several weeks without incident. After two students complained, school officials directed him to use either the girls’ bathrooms or single-stall sex-neutral bathrooms. Adams later obtained a male designation on his driver’s license and an amended birth certificate, but the District would not alter the enrollment classification it used for bathroom access.

After a three-day bench trial, the district court held that the policy violated both the Equal Protection Clause and Title IX. It enjoined the School Board from preventing Adams from using the boys’ bathrooms and awarded $1,000 in compensatory damages. A divided Eleventh Circuit panel initially affirmed, then issued a revised affirmance on different grounds. The en banc court vacated the panel decision and, by a majority, reversed the district court.

Issues

Issue #1

Whether the School Board’s policy of separating school bathrooms by biological sex violates the Equal Protection Clause as sex discrimination.

Holding

No. The policy is a sex-based classification subject to intermediate scrutiny, but it substantially advances the important governmental interest in protecting students’ privacy in school bathrooms.

Reasoning

The court applied intermediate scrutiny because the policy distinguishes between biological males and biological females. Under that standard, the School Board had to show an important governmental objective and a substantial relationship between the classification and that objective. The court emphasized that public schools exercise custodial responsibility over children and have substantial duties concerning student health, safety, and welfare.

Protecting bodily privacy in bathrooms was an important governmental objective. The court understood the relevant privacy interest as students’ interest in using communal bathroom spaces away from members of the opposite biological sex and in shielding their bodies from the opposite sex. That interest extended beyond enclosed toilet stalls because students sometimes change clothes in bathrooms and Nease’s boys’ bathrooms included undivided urinals.

The policy was substantially related to that interest because it directly separated communal bathrooms on the basis of biological sex. Intermediate scrutiny requires a close and substantial fit, not a perfect one. The court rejected the district court’s view that privacy concerns were merely conjectural, relying on the actual features of the bathrooms, the parties’ stipulation that some students and parents raised privacy concerns, and the longstanding legal recognition of sex-separated bathrooms and other intimate facilities.

The court rejected the argument that the case could be resolved simply by treating Adams’s gender identity as determinative of his sex for bathroom purposes. In the majority’s view, Adams challenged access to a bathroom reserved for students of the opposite biological sex, so the case necessarily concerned the legality of sex-separated bathrooms based on biological sex. The court also noted, without deciding the point, that there were serious questions whether Adams was similarly situated to biological boys for purposes of this policy.

Issue #2

Whether the bathroom policy independently discriminates against transgender students in violation of equal protection.

Holding

No. The policy classifies on biological sex, not transgender status or gender identity, and the record did not show purposeful discrimination against transgender students.

Reasoning

The court held that a policy separating students into biological-male and biological-female groups does not facially classify by transgender status. Both classifications can include transgender students, so the court found a lack of identity between transgender status and the policy. The policy’s terms did not refer to gender identity or transgender status.

The court distinguished Bostock v. Clayton County. Bostock held that firing someone because the person is transgender necessarily entails discrimination because of sex under Title VII, but it expressly did not decide questions involving bathrooms or locker rooms. The majority reasoned that Bostock did not establish the converse proposition that every biological-sex classification necessarily discriminates against transgender persons.

The policy did not rest on impermissible sex stereotypes, the court concluded, because biological differences between males and females are not themselves stereotypes. Nor did the court find an equal-protection violation based on disparate impact. A facially neutral policy with disparate effects violates equal protection only when adopted or maintained because of its adverse effect on an identifiable group, and the record showed no such purpose.

The court viewed the District’s provision of sex-neutral bathrooms as an accommodation rather than a special burden intentionally imposed on transgender students. The District had developed its Best Practices Guidelines after consulting students, parents, administrators, mental-health professionals, and LGBTQ organizations, and the court found no evidence that the original bathroom policy had been created to harm transgender students.

Issue #3

Whether the policy violates Title IX’s prohibition on discrimination on the basis of sex.

Holding

No. Title IX and its implementing regulation permit schools to provide separate bathroom facilities on the basis of biological sex, and the School Board’s policy falls within that authorization.

Reasoning

The court interpreted the word “sex” according to its ordinary public meaning when Title IX was enacted in 1972. Contemporaneous dictionaries overwhelmingly defined sex in biological and reproductive terms, referring to the male and female divisions of a species. The court therefore concluded that Title IX’s reference to sex meant biological sex, not gender identity or transgender status.

Statutory context reinforced that conclusion. Title IX expressly permits separate living facilities for the different sexes, and its regulations permit separate toilet, locker-room, and shower facilities on the basis of sex so long as comparable facilities are provided. Reading sex to include gender identity, the court reasoned, would undermine these express exceptions by allowing a student to claim access to facilities associated with both recorded biological sex and gender identity.

The court held that Price Waterhouse and Glenn did not change Title IX’s definition of sex. Those cases concerned discrimination based on sex stereotypes, not a redefinition of sex to include gender identity. The court also noted that Bostock proceeded on the assumption that sex referred to biological distinctions between male and female and expressly declined to address bathrooms.

Because the regulation expressly permits separate toilet facilities on the basis of sex, the School Board had a safe harbor for assigning Adams, whom it classified as female at enrollment, to girls’ or sex-neutral bathrooms. The court rejected the argument that this reading gave transgender students less protection, concluding instead that transgender students remain protected against discrimination based on their biological sex.

Even if Title IX’s use of “sex” were unclear, the court held that the Spending Clause required judgment for the School Board. Title IX conditions federal funding, so Congress had to give funding recipients unambiguous notice of any condition exposing them to liability. The court found no clear statement telling schools that the longstanding practice of separating bathrooms by biological sex violated Title IX.

Concurrences

Judge Lagoa

Reasoning

Judge Lagoa wrote separately to stress the consequences she believed would follow from defining “sex” in Title IX to include gender identity or transgender status. In her view, Title IX’s regulation allowing separate teams for each sex must use the same definition of sex as Title IX itself, so a non-biological definition could not be confined to school bathrooms.

She emphasized Title IX’s historical role in expanding athletic opportunities for girls and women. Separate women’s teams, she explained, were designed to address performance differences that emerge after male puberty and to ensure that girls and women can obtain the educational, leadership, health, and career-related benefits of athletic participation.

Judge Lagoa reasoned that, in many sports, students born male retain physical advantages associated with male puberty even after testosterone suppression. She concluded that allowing transgender girls to compete on teams designated for biological females could substantially diminish athletic opportunities and competitive equality for biological girls and women. In her view, any decision to redefine sex in the 1972 statute should come from Congress rather than the judiciary.

Dissents

Judge Wilson

Reasoning

Judge Wilson joined Judge Jordan’s equal-protection analysis and added that the majority’s own reliance on sex assigned at birth created a further problem. In his view, the policy assumes that biological sex can always be accurately and permanently determined at birth, an assumption inconsistent with medical evidence about intersex persons.

Some intersex people, he explained, have chromosomal, hormonal, gonadal, or anatomical characteristics that do not fit a simple male-female classification at birth or whose relevant characteristics become evident only at puberty. A student whose medical documentation later establishes a different biological sex could not update the enrollment classification under the School Board’s policy.

That result, Judge Wilson reasoned, would require some intersex students to use a bathroom inconsistent with their medically documented biological sex while other students may use the bathroom associated with theirs. He also concluded that the existence of intersex students undermined the majority’s claimed privacy rationale because a policy based solely on sex assigned at enrollment cannot ensure that all people in a particular bathroom have the same anatomy.

Judge Jordan

Reasoning

Judge Jordan concluded that the policy failed intermediate scrutiny because the School Board’s actual administration of it defeated its asserted privacy and safety justifications. The Board had to establish that the discriminatory means it selected were substantially related to important objectives, and administrative convenience alone could not justify a sex-based classification.

The record showed that a transgender boy who first enrolled after transition with documents listing him as male would be treated as male and permitted to use the boys’ bathroom. That student could be physically identical to Adams, have the same gender identity, and present the same asserted privacy or safety concerns, yet the policy would treat him differently solely because of his initial enrollment documents.

The District’s witnesses agreed that the School Board generally accepted enrollment documents at face value and did not act as a “bathroom cop.” Thus, the policy allowed some transgender boys to use boys’ bathrooms while excluding Adams, notwithstanding the same claimed interests. Judge Jordan reasoned that this inconsistency showed the Board’s reliance on original enrollment documents was, at most, an administrative-convenience rationale.

Judge Jordan also noted that the School District already accommodated Adams’s male identity elsewhere in its databases, including through pronouns and affirmed-name information. In his view, accepting revised documents for bathroom purposes would therefore not create a meaningful administrative problem. He would have affirmed the judgment on equal-protection grounds without reaching Title IX.

Judge Rosenbaum

Reasoning

Judge Rosenbaum joined Judge Jordan’s dissent in full and joined Judge Jill Pryor’s equal-protection analysis. She wrote separately to reject the majority’s warning that a ruling for Adams would necessarily invalidate all sex-separated bathrooms, locker rooms, changing facilities, or sports programs.

Heightened equal-protection scrutiny is fact-bound, she explained. In a future case, a governmental entity may identify interests different from those invoked by this School Board and may offer evidence that its particular policy substantially advances those interests. The School Board’s failure here to provide non-speculative evidence supporting its privacy and safety claims would not predetermine other disputes.

For Judge Rosenbaum, the appropriate decision depended on this record: the specific policy, the interests actually asserted, and the School Board’s failure to establish the requisite factual fit. That framework supplied a limiting principle and did not require courts to invalidate every policy concerning sex-separated facilities.

Judge Pryor

Reasoning

Judge Pryor dissented, arguing that judge Jill Pryor argued that the majority decided a different case from the one Adams brought. Adams did not challenge the existence of separate boys’ and girls’ bathrooms; he sought equal access to the boys’ bathroom as a transgender boy. She criticized the majority for defining “biological sex” without grounding that definition in the trial record and for disregarding unrebutted expert testimony that sex has multiple biological components, including gender identity.

In her view, the policy facially discriminated against transgender students. Cisgender students could use the bathrooms corresponding to their gender identities, while transgender students categorically could not and were directed to bathrooms associated with sex assigned at birth or to gender-neutral facilities. This distinction, she reasoned, separately placed transgender students on one side of the policy’s line and cisgender students on the other.

Judge Jill Pryor concluded that heightened scrutiny applied for two independent reasons. Under Bostock’s but-for-causation logic, excluding Adams from the boys’ bathroom was inextricably tied to sex. In addition, transgender people constituted a quasi-suspect class because the trial evidence showed a history of discrimination, an immutable defining characteristic unrelated to ability, and a lack of political power.

Although student privacy can be an important interest, Judge Jill Pryor concluded that the School Board failed to prove a substantial relationship between the policy and that interest. Its evidence consisted largely of speculation about cisgender students’ discomfort. The record instead showed that transgender students generally use bathrooms discreetly, that Adams used a locked stall, and that requiring a boy who appeared male to enter the girls’ bathroom could itself undermine the privacy interest the Board invoked.

She reached the same conclusion as to safety. The School Board did not explain concretely how allowing Adams to use the boys’ bathroom endangered anyone and presented no evidence that Adams, or transgender students generally, posed a heightened safety risk. Evidence from other school districts that permitted transgender students to use bathrooms aligned with gender identity showed no resulting privacy or safety problems.

Judge Jill Pryor also viewed the policy as arbitrarily administered. A transgender student who enrolled with updated documents could use the bathroom aligned with gender identity, while Adams could not because his original enrollment records differed. The District’s ability to update names, pronouns, and related database information further weakened any claim that refusing to recognize revised records was necessary.

On Title IX, Judge Jill Pryor concluded that Adams suffered discrimination on the basis of sex because his exclusion would not have occurred but for sex-related characteristics. She read Title IX’s facility exceptions to permit sex-separated facilities as such, not to authorize a school to assign transgender students based on a discriminatory understanding of sex. She would have affirmed the district court on both equal-protection and Title IX grounds.