Drew Adams v. School Board of St. Johns County, Florida
USCA11 Case: 18-13592 Document: 304-1 (2022)
Rule of Law:
A public school policy that separates communal bathrooms based on biological sex, while providing sex-neutral accommodations for transgender students, does not violate the Equal Protection Clause of the Fourteenth Amendment or Title IX of the Education Amendments Act of 1972.
Facts:
- Drew Adams, a transgender boy, was assigned female at birth based on chromosomal structure and anatomy, but began identifying and living as a boy at the end of eighth grade.
- Adams adopted male pronouns, dressed in boys' clothing, wore a chest binder, and began using male bathrooms in public.
- In August 2015, Adams entered ninth grade at Allen D. Nease High School, which provides female, male (with stalls and undivided urinals), and single-stall sex-neutral bathrooms for its 2,450 students.
- The School Board of St. Johns County maintained a longstanding, unwritten policy requiring students to use bathrooms corresponding to their biological sex, determined by enrollment documents like birth certificates, and did not accept updates to reflect gender identity.
- Under the School Board's 2015 'Best Practices Guidelines' for LGBTQ students, transgender students were allowed to dress according to their gender identities and use a gender-neutral restroom, but were not required to use the restroom corresponding to their biological sex.
- For the first few weeks of ninth grade, Adams used the male bathrooms without incident, but after two unidentified students complained, school officials informed Adams that he had to use either the communal female bathrooms or the single-stall, sex-neutral bathrooms.
- Adams continued his transition, including amending his Florida driver’s license and birth certificate to reflect a male designation, and underwent medical procedures such as testosterone therapy and a double-incision mastectomy, but retained his female reproductive anatomy.
- The School Board's decision to maintain its bathroom policy was partly motivated by concerns for student privacy, safety, and welfare, as well as the issue of gender fluidity, with parents and students stipulating objections to policies that would allow bathroom use based on gender identity rather than birth-assigned sex.
Procedural Posture:
- Drew Adams filed suit against the School Board of St. Johns County, Florida, in the United States District Court for the Middle District of Florida, alleging violations of the Equal Protection Clause and Title IX.
- After a three-day bench trial, the district court ruled in Adams's favor on both counts, enjoining the School Board from prohibiting Adams's use of male bathrooms and granting $1,000 in compensatory damages.
- The School Board timely appealed the district court’s order to the United States Court of Appeals for the Eleventh Circuit.
- A divided panel of the Eleventh Circuit initially affirmed the district court.
- After a member of the court withheld the mandate, the panel majority sua sponte withdrew its initial opinion and issued a revised opinion, again affirming the district court on narrower grounds.
- The Eleventh Circuit then granted the School Board's petition for rehearing en banc and vacated the panel’s revised opinion.
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Issue:
1) Does the School District’s policy of assigning communal bathrooms based on biological sex violate the Equal Protection Clause of the Fourteenth Amendment? 2) Does the School District’s policy of assigning communal bathrooms based on biological sex violate Title IX of the Education Amendments Act of 1972?
Opinions:
Majority - Lagoa, Circuit Judge
No, the School Board's policy of separating communal bathrooms based on biological sex does not violate the Equal Protection Clause or Title IX. Regarding the Equal Protection Clause, the policy withstands intermediate scrutiny because it serves the important governmental objective of protecting student privacy in school bathrooms and is substantially related to that objective. The court reasoned that separation of bathrooms by biological sex protects students’ privacy interests in shielding their bodies from the opposite sex, especially for school-aged children in communal facilities where activities beyond mere toileting (like changing clothes or using urinals) occur. The court found that the district court erred by minimizing these sex-specific privacy interests, misconstruing the factual realities of bathroom use, and discounting the stipulated privacy concerns of students and parents. Furthermore, the court held that the policy does not discriminate against transgender students because it classifies based on biological sex, not transgender status or gender identity. Both biological male and biological female classifications include transgender students, demonstrating a 'lack of identity' between the policy and transgender status, similar to Geduldig v. Aiello. The policy is based on biological differences, not impermissible stereotypes, and any disparate impact on transgender students is not purposeful discrimination but rather an unforeseen consequence of a policy implemented without transgender students in mind, which the School Board accommodated with sex-neutral options. Regarding Title IX, the court concluded that 'sex' in the 1972 statute refers to biological sex at the time of enactment, meaning discrimination between males and females based on reproductive function. Dictionary definitions from that era support this interpretation. The court rejected the argument that 'sex' is ambiguous or includes 'gender identity,' noting that Title IX's express statutory carve-out permitting 'separate living facilities for the different sexes' (and corresponding regulations for 'separate toilet, locker room, and shower facilities on the basis of sex') would be rendered meaningless if 'sex' encompassed gender identity. Additionally, applying the Spending Clause’s clear-statement rule, the court held that for Title IX to prohibit policies based on biological sex, Congress would need to unambiguously define 'sex' to mean something other than biological sex, which it has not done. Therefore, the School Board’s policy of directing Adams (a biological female) to use female bathrooms aligns with Title IX’s precepts and carve-outs, making his claim fail.
Concurring - Lagoa, Circuit Judge
I concur fully with the majority opinion, and write separately to elaborate on the potential negative impacts of departing from a biological understanding of 'sex' under Title IX, especially regarding girls' and women's rights and sports. If 'sex' were to include 'gender identity' or 'transgender status' under Title IX, there would be no limiting principle to prevent this definition from applying to sex-separated sports teams, locker rooms, and living facilities. Such an interpretation would force biological female student athletes to compete against individuals with significant biological advantages derived from male puberty, including greater lean body mass, larger hearts, and higher cardiac outputs, which are not fully mitigated by testosterone suppression. This would undermine Title IX’s major achievement of providing young women equal opportunities in sports, hindering their development, educational prospects, and leadership opportunities, which are critical for societal benefits. Therefore, the interpretation of 'sex' should remain grounded in biological reality, and any changes to include 'gender identity' or 'transgender status' should be left to Congress.
Dissenting - Wilson, Circuit Judge
Yes, even accepting the majority’s argument that the relevant factor is an individual’s biological sex, the policy is still discriminatory on the basis of sex. The bathroom policy, by distinguishing between boys and girls based on birth-assigned sex and refusing to accept updated documentation, presumes that biological sex is a static, accurately determinable characteristic. However, this presumption is medically and scientifically flawed due to the existence of intersex individuals, whose biological sex (chromosomes, internal and external anatomy) may not be easily categorizable at birth or may change over time (e.g., 5-alpha reductase deficiency, where an individual assigned female at birth develops male genitalia at puberty). An intersex student, initially assigned female at birth but later developing male genitalia and chromosomes, would be forced under the policy to continue using female restrooms despite having medically documented male genitalia. This means intersex students, unlike other students, cannot use the bathroom associated with their medically assigned biological sex, rendering the policy discriminatory. The policy's justification based on privacy and safety concerns is untenable, as it cannot prevent individuals with unexpected genitalia (like intersex students) from using sex-separated restrooms, thus failing to address the very concerns it purports to alleviate.
Dissenting - Jordan, Circuit Judge
Yes, the School Board’s unwritten bathroom policy fails intermediate scrutiny under the Equal Protection Clause. The policy allows transgender students who enroll after transition with updated documents listing them as male to use the boys’ bathroom. However, it prohibits Drew Adams, a physically similar transgender student who also identifies as male and has updated his legal documents, from using the boys' bathroom solely because he enrolled before his transition and the School Board refuses to update his original enrollment records. This differential treatment for similarly situated transgender students demonstrates that the policy is not substantially related to the School Board's asserted interests in privacy and safety. If a transgender student identical to Drew, presenting the same purported safety and privacy concerns, is allowed to use the boys' bathroom simply by virtue of later enrollment, then the School Board's rationale for excluding Drew collapses. The only remaining justification for refusing to accept updated documents is administrative convenience, which the Supreme Court has repeatedly held is an insufficient justification for a gender-based classification under intermediate scrutiny. The majority errs by failing to engage with the district court's factual findings on this arbitrary administration and by ignoring established appellate principles that allow affirmance on any ground supported by the record.
Dissenting - Rosenbaum, Circuit Judge
Yes, the district court's order should be affirmed for the reasons stated in Judges Jill Pryor and Jordan’s dissents. I write separately to emphasize that the majority's suggestions that affirming the district court’s order would inevitably dictate outcomes for all other sex-separated facilities (like locker rooms or sports) are incorrect. Heightened scrutiny, which governs this analysis, is an inherently fact-bound test. First, governmental entities must identify specific important interests, and these can vary across different policies. Second, and crucially, they must provide credible evidence that their policy substantially furthers those interests. The School Board in this case utterly failed to present any non-speculative evidence to support its claims of privacy and safety. This evidentiary failure in Adams's specific case does not prejudice other governmental entities in future challenges, as they may present different interests or provide adequate evidence. Therefore, a ruling for Adams, based on the specific factual record and the School Board's evidentiary shortcomings, would not create a broad precedent requiring the dismantling of all sex-separated facilities.
Dissenting - Jill Pryor, Circuit Judge
Yes, the School Board's exclusion of Drew Adams from the boys’ restrooms violated both the Equal Protection Clause and Title IX. For the Equal Protection Clause, the bathroom policy facially discriminates against transgender students by denying them the benefit of using restrooms that match their gender identity—a benefit extended to all cisgender students. This triggers heightened scrutiny. The court's definition of 'biological sex' as solely chromosomal structure and anatomy at birth is counterfactual to the unrebutted expert testimony that gender identity is an immutable, biological component of a person’s sex. Under this medical understanding and the logic of Bostock v. Clayton County, Adams's exclusion was 'based on sex.' Alternatively, transgender individuals constitute a quasi-suspect class due to a history of discrimination, immutable characteristics, lack of political power, and irrelevant differences to societal contribution. The School Board failed to carry its heavy burden under heightened scrutiny because it presented only speculative evidence, not substantial proof, that its policy significantly furthers its interests in student privacy and safety. The policy also undermines its own purported privacy interest by forcing a masculine-presenting Adams into girls' restrooms and is arbitrarily administered, allowing some transgender students (who enroll with updated documents) to use bathrooms aligning with their gender identity while prohibiting others like Adams. For Title IX, Adams suffered discrimination 'on the basis of sex.' Assuming 'sex' refers to biological sex, undisputed evidence shows gender identity is a biological component of sex. Under a 'but-for' causation standard, Adams was excluded from the boys’ restroom because of biological markers of his sex. Title IX's carve-outs for separate facilities only mean that creating sex-separated facilities is not inherently discriminatory; they do not permit an institution to rely on discriminatory notions of what 'sex' means when assigning individuals. The School Board's categorical assignment of transgender students based only on birth-assigned sex, ignoring gender identity as a biological marker, is discriminatory and not covered by the carve-outs. The majority's 'slippery slope' arguments about other facilities are unfounded, as the case is limited to transgender students (not gender-fluid individuals) and is based on the School Board's specific evidentiary failures, not a broad dismantling of sex-separated facilities.
Analysis:
This case significantly impacts the interpretation of sex-based classifications under the Equal Protection Clause and Title IX, particularly for transgender individuals. The Eleventh Circuit's strict adherence to a biological definition of 'sex' at birth for both constitutional and statutory analysis sets a strong precedent in the circuit, potentially diverging from approaches taken by other circuits and the implications of Bostock v. Clayton County. The ruling permits schools to maintain sex-segregated facilities based on biological sex while providing separate accommodations for transgender students, affirming such policies as constitutional and Title IX compliant. This decision could influence future litigation regarding transgender rights in public spaces and educational settings within the Eleventh Circuit, affecting policies concerning not just bathrooms but potentially locker rooms, dormitories, and sports teams, by prioritizing privacy interests defined by birth-assigned sex over gender identity.
