Adams v. School Board of St. John’s County, 3:17-cv-00739, 2022 WL 18003879 (11th Cir. 2022)
Adams, a transgender boy, sued the board of his Florida school district (“the School Board”) after his high school prohibited him from using a restroom consistent with his gender identity, instead requiring him to use the girls’ restroom or single-use, gender-neutral restrooms.
PROCEDURAL HISTORY
The federal district court held a three-day bench trial and ruled in favor of Adams that the bathroom policy violated the Equal Protection Clause of the Fourteenth Amendment and Title IX. After the School Board appealed the decision, the appeals court also sided with Adams. The School Board then petitioned for the Eleventh Circuit to rehear the case en banc, meaning that nine circuit court judges, instead of the usual three, would rehear the case and render a decision. The Eleventh Circuit granted the rehearing on the following issues:
- Does the school district’s policy of assigning bathrooms by sex violate the Equal Protection Clause?
- Does the school district’s policy of assigning bathrooms based on sex violate Title IX?
SUMMARY OF FACTS
In 2012, the school district undertook a comprehensive review of LGBTQ issues affecting students, including sending personnel to conferences, conducting research, meeting with student groups, and consulting with administrators from other school districts and local organizations. The review culminated with an announcement of a set of guidelines for LGBTQ students (“the Guidelines”). Under the Guidelines, transgender students would be able to access a gender-neutral restroom and would not be required to use the restroom corresponding to their biological sex – but they would not be able to use the restroom corresponding to their gender identity. In accordance with the Guidelines, the high school provided female, male, and gender-neutral bathrooms for its 2,500+ student body. The female bathrooms have stalls, whereas the male bathrooms have stalls and undivided urinals. The gender-neutral bathrooms are single-stall.
Adams is a transgender boy. At the end of eighth grade, Adams began identifying and living as a boy, adopting the male pronouns “he” and “him” and using the male bathroom. At the high school, Adams wanted to continue to use the boys’ bathroom. For the first few weeks, there was no incident. At some point, two other students observed Adams using the boys’ bathroom and complained to school officials. The high school then informed Adams that he would have to use the girls’ bathroom or the gender-neutral bathrooms. Adams began petitioning the school to change its policy. After Adams’s petition failed, he filed suit against the School Board alleging the bathroom policy violated the Equal Protection Clause and Title IX.
FINDINGS AND SIGNIFICANT ISSUES
Equal Protection Clause
The appeals court began its Equal Protection analysis by referring to the tradition of separating sexes in some circumstances, including the use of public bathrooms. That said, a sex-based classification must still pass “intermediate scrutiny.” Intermediate scrutiny asks whether the sex-based classification serves an important government objective. If it does, then the court must ask whether the policy substantially relates to achieving the important government objective. For a policy to be substantially related to an important governmental objective, there must be a nexus between the policy and its justification.
Turning first to Adams’s contention that the bathroom policy unlawfully discriminates on the basis of sex, the court ruled against Adams. The appeals court recognized the important role of schools setting policies for their students, permitting a degree of supervision and control. Here, school authorities conducted a review of LGBTQ issues prior to finalizing the current bathroom policy that included gender-neutral restrooms. If the policy is constitutional, the appeals court stated it was not inclined to question it.
The appeals court held that the bathroom policy survives intermediate scrutiny, asserting the protection of students’ privacy interests in using the bathroom away from the opposite sex and in shielding their bodies from the opposite sex is “obviously” an important governmental objective.[1] Citing the country’s long history of separating bathrooms by sex, and the law’s long recognition of the practice, the appeals court moved on to the question of whether the bathroom policy is substantially related to protecting student privacy interests. Without much analysis, the appeals court found the bathroom policy “clearly related to…its objective of protecting the privacy interests of students.”[2]
Notably, the appeals court took an opportunity to rebut the district court’s rationale in finding for Adams, providing some additional insight into the appeal court’s rationale for finding in favor of the School Board. The district court found that permitting transgender students to use the restrooms matching their gender identity did not impact the privacy protections already in place for other students. Adams would enter a stall, close the door, relieve himself, leave the stall, wash his hands, and leave the bathroom. The appeals court disagreed, arguing that students’ use of sex-separated bathrooms is not confined to individual stalls, as students change clothes outside the stalls and use undivided urinals. For the appeals court, the right to privacy for students to change clothes outside stalls and use undivided urinals was important enough to justify the sex-based classification.
Tellingly, and previewing its ruling on the Title IX claim, the appeals court stated “this is a case about the constitutionality and legality of separating bathrooms by biological sex…[Adams’s] gender identity is thus not dispositive for our adjudication of [Adams’s] equal protection claim.”[3] Indeed, in addition to holding that the bathroom policy does not unlawfully discriminate on the basis of sex, the appeals court held that the policy does not discriminate against transgender students.
At most, the appeals court claimed, Adams’s challenge amounts to a claim that the bathroom policy has a disparate impact on transgender students. For that kind of claim to be actionable, “purposeful discrimination” must be a motivation behind the policy. Pointing to the review of LGTBQ issues that preceded the reaffirmation of the bathroom policy, the appeals court held there was no apparent, purposeful discrimination.
Title IX
Turning to the Title IX claim, the appeals court pointed to the express Title IX statutory carve-out with respect to living facilities and other language permitting separate toilet, locker room, and shower facilities on the basis of sex. If the carve-out refers to biological sex, then the policy fits squarely within the exception. Given the court’s previous analysis, this conclusion was easy to predict. The appeals court determined that Title IXs’ reference to “sex” meant biological sex and found against the Adams.
KEY TAKEAWAYS
- This case has some unique facts, so it is an open question whether other courts will find this decision persuasive. Here, the court identified the LGBTQ assessment and the presence of gender-neutral bathrooms as significant. Other cases about transgender students and bathroom access commonly do not involve a district-wide LGTBQ assessment and/or the availability of gender-neutral restrooms. Additionally, other circuits have decided this question differently, so although schools in the 11th Circuit (Alabama, Georgia, Florida) must pay close attention to this court’s ruling, Recipients in the other states do not have a similar mandate.
- Title IX is not the only route to challenge sex-based policies at public schools, colleges, and universities – the Equal Protection Clause of the Fourteenth Amendment factors in as well. And, as you can see in the court’s analysis, the requirements of the Equal Protection Clause are different than the requirements for Title IX, just in case you wanted more complexity in your work. Generally, though, complying with Title IX will likely keep you on the right side of the Equal Protection clause.
- The proposed Title IX regulations foreshadow protections for sexual orientation and gender identity, including by removing the Title IX regulatory carve-out related to bathrooms. Following the NPRM’s publication last summer, we have seen a massive influx of state legislation and federal court cases regarding transgender students’ bathroom access. Expect to see lawsuits when the Department of Education publishes the final Title IX regulations in the coming months. It will be interesting to see how courts analyze the new regulations considering the court decisions of the last year or two. The Title IX regulations and federal courts have, in the past, created separate and different legal requirements for Recipients to follow. Will the federal courts defer to the regulations on the question of whether Title IX protects transgender students against discrimination? Or will the federal courts push back, refuse to apply Bostock’s principles, and declare that Title IX only applies to sex assigned at birth? In case you needed something else to do on top of implementing the new regulations, you should keep an eye on the flood of forthcoming lawsuits. You should consult with your legal counsel on your compliance strategy to stay on top of any court-ordered changes to the regulations. Additionally, you can keep reading these Keeping Up with the Courts summaries, the ATIXA blog, and Title IX Today. We’ve got you covered!
[1] 2022 WL 18003879 at 5.
[2] Id. at 6.
[3] Id. at 8.
