Posted by Curt on 31 December, 2022 at 9:10 am. 1 comment.



On December 30, the United States Court of Appeals for the Eleventh Circuit handed down a major opinion in in Adams v. School Board of St. Johns County, Florida. 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.  Given the countervailing decision of the Fourth Circuit in G.G. v. Gloucester Countythere is now a conflict in the circuits that could prompt a Supreme Court review. The Court expressly stated that it was not ruling on this question in its 2020 decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
Adams brought the challenge under the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq.
Judge Barbara Lagoa wrote the majority opinion, which was joined by joined by Chief Judge Bill Pryor and Judges Newsom, Branch, Grant, Luck, and Brasher.  Judges Wilson, Jordan, Rosenbaum, and Jill Pryor each wrote dissenting opinions.
The court reversed the decision of the United States District Court for the Middle District of Florida. Judge Timothy Corrigan enjoined the policy and awarded $1,000 in compensation to Adams. Corrigan’s decision was particularly notable in his interpretation of the word “sex” under Title IX, which the Eleventh Circuit ultimately rejected (as discussed below).
What happened next was interesting. A divided appellate panel affirmed the district court over a dissent from Chief Judge Pryor. Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292 (11th Cir. 2020). The Court then explained:

“After a member of this Court withheld the mandate, the panel majority sua sponte withdrew its initial opinion and issued a revised opinion, again affirming the district court over a revised dissent but on grounds that were neither substantively discussed in the initial panel opinion nor substantively made by any party before the district court or this Court.2 Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1303–04 (11th Cir. 2021); id. at 1321 (Pryor, C.J., dissenting). We then granted the School Board’s petition for rehearing en banc and vacated the panel’s revised opinion. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 9 F.4th 1369, 1372 (11th Cir. 2021).”

Judge Lagoa begins the majority opinion by describing the dispute as involving “the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex.” In analyzing the “straightforward” claims, Lagoa laid out the facts and holding:

“Adams, who identifies as a male, argues that the policy violates Adams’s rights because, as a transgender student, Adams cannot use the bathroom that corresponds to the sex with which Adams identifies. Which is to say, Adams argues that by facially discriminating between the two sexes, the School Board’s bathroom policy also necessarily discriminates against transgender students. We disagree with Adams’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students.”

On the Equal Protection question, the court ruled that intermediate scrutiny applies to the case and that the district needs only show that the policy (1) advances an important governmental objective and (2) is substantially related to that objective. Miss. Univ. for Women, 458 U.S. at 724. The court found both criteria satisfied because the 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.”

On the Title IX issue, the court held that the statute allows schools to provide separate bathrooms on the basis of biological sex.

“That is exactly what the School Board has done in this case; it has provided separate bathrooms for each of the biological sexes. And to accommodate transgender students, the School Board has provided single-stall, sex-neutral bathrooms, which Title IX neither requires nor prohibits. Nothing about this bathroom policy violates Title IX. Moreover, under the Spending Clause’s clear-statement rule, the term “sex,” as used within Title IX, must unambiguously mean something other than biological sex—which it does not—in order to conclude that the School Board violated Title IX. The district court’s contrary conclusion 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. Whether Title IX should be amended to equate “gender identity” and “transgender status” with “sex” should be left to Congress—not the courts.”

Judge Lagoa went further in a separate concurrence:

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. 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 and the Spending Clause’s clear-statement rule 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.” Id. at 1779–80. 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.” Id. at 1779.

Judge Jordan takes issue with the analysis and, while agreeing that intermediate scrutiny applies, finds a clear violation of the Constitution, noting an inherent contradiction in the policy:

“The School Board did not allow Drew Adams, a transgender student, to use the boys’ bathroom. As explained below, however, the School Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with documents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience. And when intermediate scrutiny applies, administrative convenience is an insufficient justification for a gender-based classification.”

Judge Wilson attacked the medical claims of the district in a separate dissent and suggests that it is based on the indeterminacy of gender at birth:

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