The transgender bathroom wars don’t stop for the holidays.
The latest battleground is Florida, where on Dec. 30, the U.S. Court of Appeals for the 11th Circuit, sitting en banc, ruled that the word “sex” in educational programs means being a biological “male” or “female.”
In Adams v. School Board of St. Johns County, the court ruled that a school board’s policy of separating school bathrooms based on biological sex does not violate either the Constitution or federal civil rights law.
Transgender male student Drew Adams (a biological female) challenged the policy in 2020, claiming that it violated the Constitution’s equal protection clause, which provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.”
Adams also argued that the policy violated Title IX of the Education Amendments of 1972, the federal law that prohibits discrimination on the basis of sex in any educational program that receives federal funding.
A three-judge appeals court panel initially agreed with Adams, but the full appeals court subsequently decided to take up the case and reconsider the ruling. The result was a 7-4 decision upholding the policy on both constitutional and statutory grounds.
Judge Barbara Lagoa delivered the majority opinion. She began by identifying the “unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex” at issue in the case.
She then pointed to the court’s conclusion:
[W]hen we apply first principles of constitutional and statutory interpretation, this appeal largely resolves itself.
The Equal Protection Clause claim must fail because, as to the sex-discrimination claim, the bathroom policy clears the hurdle of intermediate scrutiny and because the bathroom policy does not discriminate against transgender students.
The Title IX claim must fail because Title IX allows schools to separate bathrooms by biological sex.
Adams had argued that, by separating males and females, the school board’s bathroom policy necessarily discriminated against transgender students—those students who, despite their underlying biology, identify as either male or female.
These sex-based separations were, Adams argued, a violation of the equal protection clause. The Supreme Court has held that legislative distinctions based on biological sex are subject to an “intermediate” standard of judicial review—a standard lower than “strict scrutiny,” which almost certainly makes it invalid, but higher than “rational basis,” which nearly always leaves it alone.
To satisfy intermediate scrutiny, the bathroom policy had to (1) advance an important governmental objective; and (2) be substantially related to that objective.
Lagoa wrote that the school bathroom policy cleared both hurdles because it advanced the important governmental objective of protecting students’ privacy in school bathrooms, and it did so in a way that was substantially related to that objective. With intermediate scrutiny satisfied, there was no equal protection violation.
Regarding Adams’ claim of discrimination under Title IX, Lagoa wrote that the plain and ordinary meaning of “sex” in 1972, when Title IX was enacted, was biological sex. Because of that (and through its implementing regulations), Title IX envisioned the kind of sex-segregated bathrooms that the school board’s policy required.
What’s more, the school board had attempted to accommodate transgender students by providing single-stall, sex-neutral bathrooms, which Title IX neither requires nor prohibits.
Lagoa wrote that there was no reason, as the District Court had done, to consider “sex” ambiguous. The statutory scheme and purpose of Title IX, along with the vast majority of dictionary definitions at that time, clearly defined “sex” based on biology and reproductive function.
By maintaining bathrooms separated by biological sex, the school board had satisfied its duties under Title IX.
Though she wrote the majority opinion, Lagoa took the unusual step of also writing a separate concurring opinion, warning of the adverse impact that defining “sex” under Title IX to include “transgender status” or “gender identity” would have on the rights of girls and women in education and school sports.
Reaching Adams’ desired outcome, she wrote, would have “repercussions far beyond the bathroom door.”
She wrote:
There simply is no limiting principle to cabin that definition of “sex” to the regulatory carve-out for bathrooms under Title IX, as opposed to the regulatory carve-out for sports or, for that matter, to the statutory and regulatory carve-outs for living facilities, showers, and locker rooms.
And 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 … .’
Such a proposition—i.e., commingling 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.’
In her concurrence, Lagoa made many of the same arguments that we at The Heritage Foundation have made in countering the Biden administration’s pending and massive alteration of Title IX to include “transgender status” (among many other changes).
The educational, athletic, and professional gains of women and girls over the course of five decades are in the crosshairs as the federal Department of Education’s rule-making process seeks to make the very changes that Lagoa decried.
If such a profound cultural and policy change were to be made, it should come from Congress, rather than unelected judges or executive branch bureaucrats.
The next phase of the bathroom wars could play out on a national scale. In 2021, the U.S. Supreme Court declined to review a similar case decided by the U.S. Court of Appeals for the 4th Circuit.
In Grimm v. Gloucester County School Board, et al., the appeals court came to the opposite conclusion; namely, that Title IX and the Constitution’s equal protection clause protected a transgender male student (a biological female) from a school board’s bathroom policy that prohibited the student from using the bathroom that corresponded with that student’s gender identity.
Such a clear split between two federal circuit courts on the same legal issue, especially one involving both the Constitution and a federal statute, makes it more likely that the Supreme Court will decide to settle the conflict.
Supreme Court Justice Samuel Alito predicted such a development in a dissenting opinion more than two years ago. In Bostock v. Clayton County, Georgia (2020), in an opinion by Justice Neil Gorsuch, the court interpreted the word “sex” in Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, to include “gender identity.”
In excoriating the majority for “legislating,” instead of “interpreting,” Alito wrote:
What the Court has done today—interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity—is virtually certain to have far-reaching consequences.
Over 100 federal statutes prohibit discrimination because of sex … . The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside.
As to Title VII itself, the Court dismisses questions about ‘bathrooms, locker rooms, or anything else of the kind.’ … And it declines to say anything about other statutes whose terms mirror Title VII’s.
The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible … . Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead.
As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety.
Many court-watchers see Bostock as the pebble that triggered an avalanche of court battles over the meaning of “sex” in federal law.
Should Adams decide to appeal to the Supreme Court, the clock has already started ticking. All petitions for writ of certiorari must be filed within 90 days of entry of the federal appellate court’s judgment, making Adams’ request for review due somewhere around early April.
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