Tuesday, January 03, 2023

11th Circuit En Banc Upholds School Policy Assigning Restrooms on Basis of Biological Sex

In Adams v. School Board of St. Johns County, Florida, (11th Cir., Dec. 30, 2022), the U.S. 11th Circuit Court of Appeals sitting en banc in a 7-4 decision held that separating use of male and female bathrooms in public schools based on students' biological sex does not violate either the Equal Protection Clause or Title IX. The six opinions filed in the case span 150 pages.  A 3-judge panel in a 2-1 decision had previously ruled to the contrary. The majority opinion on en banc review said in part:

The School Board’s bathroom policy is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur. Therefore, the School Board’s bathroom policy satisfies intermediate scrutiny.

The district court avoided this conclusion only by misconstruing the privacy interests at issue and the bathroom policy employed.... [T]he bathroom policy does not unlawfully discriminate on the basis of biological sex....

The policy impacts approximately 0.04 percent of the students within the School District—i.e., sixteen transgender students out of 40,000 total students—in a manner unforeseen when the bathroom policy was implemented. And to accommodate that small percentage, while at the same time taking into account the privacy interests of the other students in the School District, the School Board authorized the use of sex-neutral bathrooms as part of its Best Practices Guidelines for LGBTQ issues....

Contrary to the dissent’s claim, the School Board, through the Best Practices Guidelines, did not discriminatorily “single[] out transgender students.” ... The School Board sought to accommodate transgender students by providing them with an alternative—i.e., sex-neutral bathrooms—and not requiring them to use the bathrooms that match their biological sex— i.e., the bathroom policy Adams challenges.... Ultimately, there is no evidence of purposeful discrimination against transgender students by the School Board, and any disparate impact that the bathroom policy has on those students does not violate the Constitution.

Judge Lagoa filed an opinion Specially Concurring, saying in part:

 I write separately to discuss the effect that a departure from a biological understanding of “sex” under Title IX—i.e., equating “sex” to “gender identity” or “transgender status”—would have on girls’ and women’s rights and sports.

Judge Wilson dissented, saying in part:

Underlying this sex-assigned-at-matriculation bathroom policy ... is the presumption that biological sex is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended documentation because a student’s sex does not change. This presumption is both medically and scientifically flawed....

The case of intersex students therefore proves that a privacy concern rooted in a thin conception of biological sex is untenable.

Judge Jordan filed a dissenting opinion, joined by Judges Wilson and Rosenbaum, saying in part:

[T]he School Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with documents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience.

Judge Rosenbaum filed a dissenting opinion, saying in part:

I join Judge Jordan’s dissent in its entirety and Judge Jill Pryor’s dissent’s equal-protection analysis. I write separately only to emphasize one point ...: the Majority Opinion’s misplaced suggestions that affirming the district court’s order on equal-protection grounds would require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities must necessarily be upheld are wrong.

Judge Jill Pryor filed a dissenting opinion (which Judge Rosenbaum joined as to her equal protection analysis) saying said in part:

In contrast to transgender students, all cisgender students are permitted to use the restroom matching their gender identity. The policy, therefore, facially discriminates against transgender students by depriving them of a benefit that is provided to all cisgender students. It places all transgender students on one side of a line, and all cisgender students on the other side. The School District cannot hide beyond facially neutral-sounding terms like “biological sex.” As the Supreme Court has observed, “neutral terms can mask discrimination that is unlawful.”...

[T]he bathroom policy’s assignment of Adams to the girls’ restrooms would actually undermine the abstract privacy interest the School District wished to promote. While he attended Nease and was excluded from the boys’ bathrooms, Adams had “facial hair,” “typical male muscle development,” a deep voice, and a short haircut.... He had no visible breast tissue; his chest appeared flat. He wore masculine clothing. Any occupant of the girls’ restroom would have seen a boy entering the restroom when Adams walked in. Thus, the district court found, “permitting him to use the girls’ restroom would be unsettling for all the same reasons the School District does not want any other boy in the girls’ restroom.”...

The School District’s policy categorically assigned transgender students, including Adams, to bathrooms based on only one biological marker: their sex assigned at birth. Adams’s claim that the School District’s notion of what “sex” means is discriminatory is not foreclosed by the Title IX carveouts....

Law & Crime reports on the decision.