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.
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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.

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