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In the Case of Public School Bathrooms: Separate Is Equal

In the Case of Public School Bathrooms: Separate Is Equal

Eleventh Circuit Says School’s Policy of Assigning Bathrooms Based on Biological Sex Does Not Violate U.S. Constitution

The issue on appeal for the Eleventh Circuit to decide was whether separating the use of male and female bathrooms in public schools based on a student’s biological sex violates the Equal Protection Clause and Title IX of the Education Amendments Act. The Eleventh Circuit held it does not – separating school bathrooms based on biological sex is constitutional and comports with Title IX.

The Court rejected argument that purported concerns about privacy in the bathroom equate to complaints about racial segregation as a “false equivalence.” It is well established that racially segregating schools is unconstitutional. Equally well established is the concept that individuals enjoy privacy interests in the bathroom, so it is a legitimate concern. In contrast, racially segregating a school is unconstitutional so complaints about racially integrated schools are illegitimate complaints.

The Court noted that gender identity is not the same as biological sex. The Supreme Court’s has long recognized that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Adams’ gender identity is thus not dispositive of his claims. 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, the bathroom options are equivalent to those provided to all students of the same biological sex. Both groups inherently contain transgender students.

Drew Adams v. School Board of St. Johns County

Factual Background

Defendant-Appellant was the St. Johns County School Board (“School Board.”) The School Board has over 40,000 students who attend 36 different schools with the district. Of the 40,000 students, around 16 identify as transgender. Plaintiff-Appellee was Drew Adams, a transgender high school boy. This means he identifies as a male but his biological sex is female. Adams first enrolled with the School Board as a female in fourth grade and began identifying as a male in eighth grade.

The high school Adams attended had female, male, and sex-neutral bathrooms for its 2,450 students. The communal female bathrooms had stalls and the communal male bathrooms had stalls and undivided urinals. Single-stall, sex neutral bathrooms were provided to accommodate any student, including the 5 transgender students at Nease High School.

The School Board, like many others, had an unwritten bathroom policy under which male students must use the male bathroom and female students must use the female bathroom. This is based on the student’s biological sex. The biological sex is determined based on various documents, including birth certificates submitted with the student when they first enroll. The School Board did not accept updates to the students’ enrollment documents to conform with their gender identities. Transgender students were not required to use the restroom corresponding to their biological sex and instead could use the gender-neutral bathroom.

Procedural History

Because Adams was biologically female and first enrolled in the district as a female, Adams could use either the female bathroom or the sex-neutral bathroom. However, Adams, who identified as a male, wanted to use the male bathrooms. Adams sued the School Board, alleging its bathroom policy violated the Equal Protection Clause and Title IX. He challenged the requirement that he must use either the female bathroom or the sex-neutral bathroom.

The district court ruled in Adams favor and concluded the School Board’s privacy concerns are “only conjectural” because Adams simply enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves. The School Board appealed. The Eleventh Circuit in a divided panel previously issued two different opinions – both agreed with the district court. However, after the School Board’s petition for rehearing, the Eleventh Circuit, this time with all eleven judges on the panel (four dissenting) vacated its revised opinion and on December 30, 2022, issued its third opinion overruling the district court.

The only two issues before the Court were:

  1. Does the School Board’s policy of assigning bathrooms based on sex violate the Equal Protection Clause?
  2. Does the School Board’s policy of assigning bathrooms based on sex violate Title IX?

The short answer to both is: no.

Eleventh Circuit’s Third Revised Opinion on Adams v. School Board of St. Johns County

Adams argued the School Board’s bathroom policy on its face discriminates between males and females. The Eleventh Circuit disagreed with Adams’ theory that the separation of bathrooms based on biological sex necessarily discriminates against transgender students.

School’s Bathroom Policy Does Not Violate the Equal Protection Clause

When it comes to sex-based classifications, a policy is constitutional if the government shows that (1) the classification serves important governmental objectives and (2) the discriminatory means employed are substantially related to the achievement of those objectives. The Eleventh Circuit concluded the bathroom policy cleared both hurdles because the policy advances the important governmental objective of protecting students’ privacy in school bathrooms and does so in a manner substantially related to that objective. In short, the bathroom policy does not discriminate on the basis of gender or transgender status.

Bathroom Policy Serves Important Governmental Objectives

All individuals possess a privacy interest when using the restroom or other spaces to remove clothes and engage in personal hygiene and this is heightened when persons of the opposite sex are present. This protection of individual privacy will require some segregation between sexes. Thus, sex-separated bathrooms and shielding one’s body from the opposite sex has been widely recognized throughout American history. Accordingly, the Eleventh Circuit concluded the protection of students’ privacy interest in using the bathroom and in shielding their bodies from the opposite sex is an important governmental objective – particularly where school-age children are still developing, both emotionally and physically.

Bathroom Policy Is Substantially Related to Governmental Objective

The Eleventh Circuit  found that the 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. The Court stressed that the students’ use of the sex-separated bathrooms is not confined to individual stalls (students change in the bathrooms and in the male bathrooms, use undivided urinals). Instead, sex-specific privacy interests for all students attach once the doorways to those bathrooms swing open.

Bathroom Policy Does Not Discriminate Based On Gender Or Transgender Status

The bathroom policy classifies based on biological sex, not transgender status or gender identity. Both sides of the classification, biological males and biological females, include transgender students. Because the bathroom policy divides students into two groups, both of which include transgender students, the policy can lawfully classify on the basis of sex without unlawfully discriminating on the basis of transgender status. To say the policy relies on impermissible stereotypes because it is based on the biological differences between males and females is incorrect – it has long been recognized that there are biological differences between males and females.

At most, the policy has a disparate impact on transgender students. However, the Eleventh Circuit held that because the policy is otherwise neutral and not motivated by purposeful discrimination, any disparate impact on those students is not unconstitutional. There is no suggestion that the School Board enacted its bathroom policy because of the negative effects upon transgender students. Transgender students were not even in mind when separate multi-stall bathrooms for girls and boys were established and the policy impacts approximately .04% of students within the district. The school did not require transgender students to use the bathroom that matched their biological sex and instead sought to accommodate them by providing them an alternative – sex neutral bathrooms.

The Bathroom Policy Does Not Violate Title IX

The purpose of Title IX is to prohibit sex discrimination in education. Unlike Title VII, Title IX includes express carve outs differentiating between the sexes. Title IX permits educational institutions to maintain separate living facilities for the different sexes, including separate toilet, locker room, and shower facilities, so long as the facilities provided for one sex are comparable to the other sex and proportionate in quantity to the number of students of that sex applying for such housing. Title IX explicitly permits differentiating between sexes in certain instances, including school bathrooms, locker rooms, and showers. Therefore, the School Board’s bathroom policy fits within the carve out permitted by Title IX. As such, the School Board can mandate that all students including transgender students, follow the policy.

Distinguishing SCOTUS’s Holding In Bostock

The Eleventh Circuit took care to distinguish its opinion from the U.S. Supreme Court’s June 2020 opinion in  Bostock v. Clayton County, a Title VII wrongful termination discrimination case. In Bostock, SCOTUS held that an employer who fires someone simply for being gay or transgender has been discriminated against “based on sex.” The Supreme Court explicitly limited its opinion and noted it did “not purport to address bathrooms, locker rooms, or anything else of the kind.” The Eleventh Circuit recognized that there are inherent differences in public schools and the workplace. Constitutional rights are different in schools because of the schools’ custodial and tutelary responsibility for children. Schools are responsible for the discipline, health, and safety of students and thus are permitted a degree of supervision and control that cannot be exercised over free adults. Given schools responsibilities, the Supreme Court has afforded deference to their decisions when examining constitutional issues. Title IX also provides specific carve outs for schools regarding bathroom/locker use that Title VII does not. As such, the Eleventh  Circuit declined to equate “sex” to “transgender status” or “gender identity.” “Sex” is based on biology and reproductive function as illustrated by the definitions of “female” and “male.” Indeed, in Bostock, the Supreme Court noted that “sex” referred only to the biological distinction between male and female and analyzed a workplace discrimination case based on impermissible stereotypes based on sex. 

Significance for Florida School Boards

The Eleventh Circuit is over Florida, Georgia, and Alabama. Given the Eleventh Circuit’s recent opinion, a public school bathroom policy providing separate bathrooms based on biological sex along with a sex-neutral bathroom comports with the Equal Protection Clause and Title IX.

If school boards have not done so already, they should conduct a review and revise their policies and overall approaches to education programs and activities to ensure that they are in compliance with the U.S. Constitution and are following the best practices and guidelines for LGBTQ students.

School boards should also be prepared to explain how their policies serves an important school board function – to protect the students’ welfare and safety.