Circuit Court Split on Bathroom Question
Posted on January 04, 2023
Important Takeaways: The 11th Circuit issued the first federal circuit court ruling saying that a policy that does not allow transgender students to use bathrooms aligned with their gender identity does not violate the Fourteenth Amendment or Title IX.
Facts: Drew Adams started identifying as male in 8th grade and in 2015 started at Nease High School (Nease). The school has gender-specific bathrooms where students also often do other things such as changing clothes. The school also has single-stall bathrooms for any student to use. When Adams started at Nease he was given access to gender-neutral bathrooms and was not required to use the bathroom corresponding to his biological sex and was allowed to use the bathrooms aligned with his gender identity. One day two students saw Adams using the male bathroom and complained. In response, Nease told Adams to use the female or single-stall bathrooms as their policy requires students to use bathrooms aligned with their biological sex.
In June 2017, Adams filed a lawsuit alleging the policy requiring him to use the bathroom aligned with his biological sex violated Title IX and the district court ruled in his favor. A divided 11th Circuit Court of Appeals panel affirmed the district court. The 11th Circuit then agreed to hear the case en banc (with all judges on the court). The questions the Court addressed were if the school district’s policy of assigning bathrooms based on sex violates the Equal Protection Clause of the Fourteenth Amendment and if the School District’s policy of assigning bathrooms based on sex violates Title IX. The 11th Circuit held the policy does not violate the Fourteenth Amendment or Title IX.
Sex-based classifications do not violate the Fourteenth Amendment if they satisfy intermediate scrutiny, meaning the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. The school district put together a group to examine how to best serve LGBTQ+ students prior to the lawsuit and the school board believed the bathroom policy was necessary to ensure the privacy and overall welfare of its entire student body after the group gave their recommendations. The Court held that the policy passes intermediate scrutiny because it has the objective of protecting students’ privacy in school bathrooms and is substantially related to that objective. Students have a privacy right in shielding their bodies from the opposite sex and separation based on biological sex protects this interest. The Court pointed out that the privacy interest of shielding one’s body from someone of the opposite sex has long been recognized by society and the courts. This policy clearly protects the privacy interest of students to use the bathroom away from the opposite sex and shield their bodies from the opposite sex in the bathroom. Since the students do not just use individual stalls and change and use undivided urinals there is a privacy interest in protecting your body from the other sex and the policy protects that interest.
The Court distinguished this situation from Bostock because in that case the Supreme Court expressly would not address the issues of bathrooms, locker rooms, or anything of that kind. In Bostock the Supreme Court held that “sex” under Title VII included gender identity. The 11th Circuit held this case was distinguishable from Bostock in that this case says that discrimination based on sex is not discrimination based on transgender status and while Bostock held that discrimination based on transgender status is discrimination based on sex. The 11th Circuit pointed out that disparate impact on transgender students alone does not violate the constitution. The school board gave transgender students an alternative option in the form of accommodation in gender-neutral bathrooms, which they were not required to do. The Court held there was no evidence of purposeful discrimination, transgender students were not even in mind when this policy was created. Title IX also has a specific carve-out that allows schools to have separate living facilities for men and women. Separate toilets, locker rooms, and shower facilities are allowed on the bases of sex if they are comparable. The question in Bostock was not what sex meant but what Title VII says about it and Title IX has express carve-outs for separate living and bathroom facilities that Title VII does not have.
The 11th Circuit held that they must interpret the word “sex” with the regular meaning it had when congress enacted the law, which would not include gender identity. The term sex was not ambiguous and therefore will be interpreted through its ordinary meaning. If the term sex included gender identity when used in Title IX, then the carve-outs would not matter. Including gender identity would mean an institution could not make permissible policies even under the carve-outs. The 11th Circuit held even if the statute were unclear, the school would still win because Title IX is under the spending clause power of Congress, and laws applied to states through the spending clause have to be unambiguous. There has to be a clear statement to states about how they can receive federal funding. The Court held that if this bathroom policy was a Title IX violation it this way it is a slippery slope because it affects all living facilities. For these reasons, the Court held the policy was permissible
What This Means: This is the first time a federal circuit court has said that a school district does not have to allow transgender students to use a bathroom that aligns with their gender identity. In the 9th Circuit, where Montana is located, policies that allow transgender students to use the bathroom aligned with their gender identity do violate the rights of other students. We expect to see this issue brought up to the Supreme Court of the United States now that there is a circuit court split.
What is the name of the case and where you can read it: Adams v. School Board of St. Johns County, December 30, 2022, Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin at 406-542-1300 to discuss these issues.
