Law & Courts

School District Policy Basing Restroom Access on ‘Biological Sex’ Upheld by Appeals Court

By Mark Walsh — January 02, 2023 5 min read
Transgender student Drew Adams speaks with reporters outside of the 11th Circuit Court of Appeals in Atlanta on Dec. 5, 2019.
  • Save to favorites
  • Print

A federal appeals court has upheld a Florida school district’s policy of separating restrooms by “biological sex” and thus barring transgender students from using facilities consistent with their gender identity.

The 7-4 decision by the full U.S. Court of Appeals for the 11th Circuit, in Atlanta, goes against several other federal appeals courts that have ruled that transgender students were protected by the the 14th Amendment’s equal-protection clause or Title IX of the Education Amendments of 1972, which bars discrimination based on sex in federally funded educational programs. The ruling also tees up a potential showdown in the U.S. Supreme Court over transgender rights.

Writing for the majority on Dec. 30, Judge Barbara Lagoa said it was “unremarkable” that schools were separating restrooms by biological sex for years and were expressly authorized to do so under Title IX. She said the policy of the St. Johns County, Fla., district did not discriminate on the basis of sex or transgender status, and she discounted some of the arguments of former student Drew Adams, a transgender male, that he should not have been required to use the girls’ restroom or a sex-neutral, single-stall bathroom.

“Simply put,” Lagoa said in the 150-page decision in Adams v. School Board of St. Johns County, “this is a case about the constitutionality and legality of separating bathrooms by biological sex because it involves an individual of one sex seeking access to the bathrooms reserved for those of the opposite sex.”

A contrary conclusion in favor of Adams by a federal district court “is not supported by the plain and ordinary meaning of the word ‘sex’ and provides ample support for subsequent litigants to transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities,” said Lagoa, who was on former President Donald Trump’s shortlist for the Supreme Court vacancy filled by Justice Amy Coney Barrett in 2020.

Judge Jill Pryor, in one of several dissents in the case, said the majority’s definition of “biological sex” based on chromosomal structure and anatomy at birth “has no business driving the framing and resolution of this case.”

“Adams’s position in this litigation … has always been that his exclusion, as a transgender boy, from the boys’ restrooms at Nease High School violated the Equal Protection Clause and Title IX,” Pryor said. “Far from wanting to eliminate sex-separated bathrooms, Adams’s case logically depends on their existence: he simply wanted to use the boys’ restrooms.”

Lambda Legal, which represents Adams, issued a statement by its senior counsel, Tara Borrelli, that said, “This aberrant ruling contradicts the decisions of every other circuit to consider the question across the country. Transgender students deserve the same dignity and opportunity to thrive in school as all other students, and Lambda Legal’s work will not be done until that is a lived reality for every student.”

The statement did not address whether Lambda Legal planned to appeal the decision to the Supreme Court, but the organization retweeted the message of a supporter who said, “This fight is not over.”

School district refused to accept an updated birth certificate

Adams, now a college student, challenged a school board policy that barred him from the boys’ restroom after he began presenting as a boy when he entered Nease High School in Ponte Vedra, Fla., in 2015.

The St. Johns district had adopted a policy that included using transgender students’ preferred pronouns, but it declined to allow transgender students to use restrooms or locker rooms consistent with their gender identity.

The district refused to accept Adams’s amended Florida birth certificate, which lists him as male, and instead relied on his birth certificate from the time of his enrollment, which listed Adams as female.

A federal district court ruled for Adams on both equal-protection and Title IX grounds. In 2021, a three-judge panel of the 11th Circuit ruled for Adams on the equal-protection claim over the strong dissent of one judge. But the full 11th Circuit granted rehearing in the case.

In her opinion for the majority, Lagoa says that the school district’s policy does not violate Title IX because the statute unambiguously defined “sex” as biological sex.

“Reading ‘sex’ to include ‘gender identity,’ and moving beyond a biological understanding of ‘sex,’ would provide more protection against discrimination on the basis of transgender status under the statute and its implementing regulations than it would against discrimination on the basis of sex,” she said.

Lagoa rejected arguments that the Title IX analysis should be governed by the Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which held that sexual orientation and transgender status were protected under the sex-discrimination prong of the Civil Rights Act of 1964.

“We cannot, as the Supreme Court did in Bostock, decide only whether discrimination based on transgender status necessarily equates to discrimination on the basis of sex,” Lagoa said. “This is because Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for differentiating between the sexes when it comes to separate living and bathroom facilities, among others.”

In a separate concurrence to her own opinion, not signed by any other judge, Lagoa expressed concerns about what a ruling in favor of transgender students on restroom access would mean in another context—girls’ and women’s sports.

“Comingling both biological sexes in the realm of female athletics—would threaten to undermine one of Title IX’s major achievements, giving young women an equal opportunity to participate in sports,” she wrote. Several states have passed laws limiting participation in girls’ school sports to “biological females.”

What about ‘intersex’ people, one dissenting judge asks

Pryor, in her dissent, said the school district’s policy violates both the equal-protection clause and Title IX.

“By excluding Adams from the boys’ restrooms at Nease High School and relegating him to the gender-neutral restrooms, the school district forced Adams to wear what courts have called a ‘badge of inferiority,’” she wrote.

In a separate dissent, Judge Charle R. Wilson said the majority wrongly assumes that a person’s biological sex is accurately determined at birth and that it is “static and permanent.”

“This presumption is both medically and scientifically flawed,” said Wilson, adding that the policy does not account for “intersex” individuals, those whose sex at birth is not easy to recognize or categorize.

“If the school board were truly concerned about male genitalia in the female bathroom, or vice versa, the policy would account for intersex students and would accept updated documentation,” he said.

Events

Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.
Ed-Tech Policy Webinar Artificial Intelligence in Practice: Building a Roadmap for AI Use in Schools
AI in education: game-changer or classroom chaos? Join our webinar & learn how to navigate this evolving tech responsibly.
Education Webinar Developing and Executing Impactful Research Campaigns to Fuel Your Ed Marketing Strategy 
Develop impactful research campaigns to fuel your marketing. Join the EdWeek Research Center for a webinar with actionable take-aways for companies who sell to K-12 districts.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Oklahoma Nonbinary Student's Death Shines a Light on Families' Legal Recourse for Bullying
Students facing bullying and harassment from their peers face legal roadblocks in suing districts, but settlements appear to be on the rise
11 min read
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school bathroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school restroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
Nate Billings/The Oklahoman via AP
Law & Courts Supreme Court Declines Case on Selective High School Aiming to Boost Racial Diversity
Some advocates saw the K-12 case as the logical next step after last year's decision against affirmative action in college admissions
7 min read
Rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., Aug. 10, 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. A federal appeals court’s ruling in May 2023 about the admissions policy at the elite public high school in Virginia may provide a vehicle for the U.S. Supreme Court to flesh out the intended scope of its ruling Thursday, June 29, 2023, banning affirmative action in college admissions.
A group of rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., in August 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. The U.S. Supreme Court on Feb. 20 declined to hear a challenge to an admissions plan for the selective high school that was facially race neutral but designed to boost the enrollment of Black and Hispanic students.
J. Scott Applewhite/AP
Law & Courts School District Lawsuits Against Social Media Companies Are Piling Up
More than 200 school districts are now suing the major social media companies over the youth mental health crisis.
7 min read
A close up of a statue of the blindfolded lady justice against a light blue background with a ghosted image of a hands holding a cellphone with Facebook "Like" and "Love" icons hovering above it.
iStock/Getty
Law & Courts In 1974, the Supreme Court Recognized English Learners' Rights. The Story Behind That Case
The Lau v. Nichols ruling said students have a right to a "meaningful opportunity" to participate in school, but its legacy is complex.
12 min read
Associate Justice of the U.S. Supreme Court William O. Douglas is shown in an undated photo.
U.S. Supreme Court Justice William O. Douglas, shown in an undated photo, wrote the opinion in <i>Lau</i> v. <i>Nichols</i>, the 1974 decision holding that the San Francisco school system had denied Chinese-speaking schoolchildren a meaningful opportunity to participate in their education.
AP