The decision by a federal appeals court Friday to uphold a Florida school district’s policy barring trans students from using the restroom corresponding to their chosen sex could set up a showdown in the U.S. Supreme Court over the contentious issue.
In a 7-4 decision, the 11th U.S. Circuit Court of Appeals held that the St. Johns County School Board policy that barred a biological female who identifies as male from using a high school’s boys’ restroom violates neither the student’s constitutional right to equal protection nor Title IX, the federal law against discrimination by schools based on sex. The court’s ruling differs on substance from a 2020 decision by the 4th Circuit striking down a similar policy in Gloucester County, Virginia.
“Given the countervailing decision of the Fourth Circuit in G.G. v. Gloucester County, there is now a conflict in the circuits that could prompt a Supreme Court review,” said George Washington University Law Professor Jonathan Turley.
The court ruled 7-4 against a statutory and constitutional challenge of a transgender student to a district policy requiring students to use bathrooms corresponding to their biological sex… https://t.co/YppVW9Kius
— Jonathan Turley (@JonathanTurley) December 31, 2022
In the decision handed down Friday, the court ruled against plaintiff Drew Adams, who was required to use a gender-neutral, single-stall bathroom or girls’ bathrooms while attending Nease High School. Judge Barbara Lagoa, a former Florida state Supreme Court justice, wrote in the majority opinion that the policy was implemented to protect the privacy of students.
“The school board’s 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,” Lagoa wrote.
The decision broke down on partisan lines as Republican appointees Chief Judge William Pryor and judges Elizabeth Branch, Andrew Brasher, Britt Grant, Robert Luck, and Kevin Newsom all joined Lagoa’s opinion. All four dissenters were appointed by Democratic presidents.
In one dissenting opinion, Judge Jill Pryor wrote that the policy meant Adams was “was forced to endure a stigmatizing and humiliating walk of shame — past the boys’ bathrooms and into a single-stall ‘gender neutral’ bathroom.” She said the court majority “labels Adams as unfit for equal protection based on his transgender status.”
In her opinion, Pryor adopted the gender theory argument that biological sex and gender identity are not the same thing.
“To start, the majority opinion simply declares — without any basis — that a person’s ‘biological sex’ is comprised solely of chromosomal structure and birth-assigned sex,” Pryor wrote.
Judge Charles Wilson, in a separate dissent, claimed that the policy was rooted in the “medically and scientifically flawed” idea that people can’t change their sex.
The school’s policy provided for a gender-neutral restroom and could also trans students who had documentation of their altered status prior to enrollment to use the restroom of their choice.
The ruling reversed an earlier one in the case by the United States District Court for the Middle District of Florida. A three-judge circuit court panel initially upheld the lower court’s decision over Pryor’s dissent, but then vacated that decision and held an en banc hearing, or one before the entire circuit.
The U.S. Supreme Court expressly stated that it was not ruling on transgender restroom issue in its 2020 decision in Bostock v. Clayton County. In that case, a 6-3 majority ruled that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating based on sex. Adams relied on that ruling in bringing the case against the Florida school district, even though the high court explicitly stated it did not apply to school restroom policies.
“We do not purport to address bathrooms, locker rooms, or anything else of the kind,” the high court wrote in Bostock. “The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
The Florida majority said that Title IX allows the district to have separate restrooms for biological girls and boys, pointing out that the statute’s reference to “sex” is not synonymous with “gender identity” or “transgender status.”
“Affirming the district court’s order and adopting Adams’s definition of “sex” under Title IX to include “gender identity” or “transgender status” would have had repercussions far beyond the bathroom door,” Lagoa wrote.
A policy allowing students to use the restroom of their choice would open sports, living facilities, showers, and locker rooms up to the same rules, Lagoa said. That could defeat one of the original purposes of Title IX, which was to give girls and women a chance to compete at sports, Lagoa said.
“A definition of ‘sex’ beyond ‘biological sex’ would not only cut against the vast weight of drafting-era dictionary definitions … but would also force female student athletes to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female,” she wrote.