On December 31, 2022, the U.S. Court of Appeals for the Eleventh Circuit issued a 7-4 en banc decision affirming that public schools have the right to segregate bathrooms and locker rooms by biological sex.

This case, Adams v. School Board of St. Johns County, Florida, began when a biological female who identified as male sought to use the bathrooms and locker rooms that corresponded with the student’s gender identity instead of biological sex. The Florida school district provided extensive accommodations for transgender students, including instructing its employees to use such students’ preferred pronouns. But as to bathrooms and locker rooms, the school district sought to accommodate transgender students by providing sex-neutral facilities. However, they would not let them use the facilities that corresponded to the opposite biological sex.

The student sued the school district, claiming failing to grant the student’s requested accommodation violated both the Equal Protection Clause and Title IX. The district court ruled in the student’s favor, and the school board appealed. A panel of the Eleventh Circuit affirmed in a 2-1 vote, but the judges voted to rehear the case en banc. Finally, in a 7-4 decision authored by Judge Lagoa, the Eleventh Circuit reversed the district court’s decision. The majority reasoned that the school district’s policy survived intermediate scrutiny because it was clearly related to the objective of protecting the privacy interests of other students, disagreeing with Judge Jordan’s dissenting view that the state’s only interest was administrative convenience. The majority also held that it did not violate Title IX.

In two other cases before the Eleventh Circuit dealing with transgender issues and the Equal Protection Clause, my organization has argued that sex-based classifications trigger intermediate scrutiny only when the government is engaging in sex-based discrimination. If so, then intermediate scrutiny would not be triggered here, because both sexes would have to comply with the policy. However, the Eleventh Circuit held that the sex-based classification alone triggered intermediate scrutiny, but the school board easily passed it. This sets a precedent in the Eleventh Circuit that it is lawful for local schools to require students to use the facilities that correspond with their biological sexes.

There were several noteworthy features of the Eleventh Circuit’s opinion. First, the court held that sex is static, not fluid. Quoting the U.S. Supreme Court’s 1973 decision in Frontiero v. Richardson, the court held that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Judges Wilson and Jill Pryor both argued against this holding, reasoning that one’s sex can change.

Second, the court refused to wade into the pronoun debate by simply referring to the appellee as “Adams.” In 2020, Judge Stuart Kyle Duncan of the Fifth Circuit made national news by refusing to address a transgender inmate by that person’s preferred pronouns in United States v. Varner, reasoning that “enlist[ing] the federal judiciary” in that venture would be a “quixotic undertaking.” While the Eleventh Circuit did not cite Varner specifically, the court appeared to agree.

Third, the Eleventh Circuit distinguished the U.S. Supreme Court’s decision in Bostock v. Clayton County, Ga., on the grounds that there are textual and structural differences between Title VII and Title IX. Specifically, the court reasoned that Title IX and its regulations explicitly allow recipients of federal funds to separate living facilities on the ground of biological sex. Such a provision is not present in Title VII, which was the basis of Bostock’s challenge.

Finally, in a special concurrence, Judge Lagoa argued that failing to separate students by biological sex would be disastrous for girls’ sports. As Ed Whelan wrote for National Review, Judge Lagoa’s concurrence was aimed at rebutting Judge Jill Pryor’s dissent.

 

The Eleventh Circuit’s en banc opinion now stands in opposition to the Fourth Circuit’s decision in Grimm v. Gloucester County School Board, which held that intermediate scrutiny applies and that the walls between bathroom stalls were sufficient to protect student privacy interests This circuit split may provide the opportunity for the U.S. Supreme Court to step in and resolve the matter. Whether the student will petition the Supreme Court for certiorari remains to be seen.  

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