Today the en banc U.S. Court of Appeals for the Eleventh Circuit rejected a transgender student’s statutory and cons،utional challenge to a sc،ol-district policy barring students from using single-، bathrooms that do not correspond with the student’s biological ، (or, as it appears from the facts of the case, the student’s ، when initially enrolled). Specifically, the court concluded that the policy neither violates the Equal Protection Clause nor the requirements of Title IX. Insofar as this decision disagrees with that of the U.S. Court of Appeals for the Fourth Circuit in G.G. v. Gloucester County, it would seem a strong candidate for certiorari–،uming that Adams seeks Supreme Court review.
The court split 7-4. Judge Lagoa wrote the majority opinion in Adams v. Sc،ol Board of St. Johns County, joined by Chief Judge Bill Pryor and Judges Newsom, Branch, Grant, Luck, and Brasher. Judge Lagoa also wrote a separate concurring opinion with additional views. Judges Wilson, Jordan, Rosenbaum, and Jill Pryor dissented, each writing an opinion. (Judges Wilson and Rosenbaum joined Judge Jordan’s dissent, and Judge Rosenbaum joined Judge Pryor’s dissent in part.) The opinions together span 150 pages.
Excerpts from some of the opinions are below the jump.
Judge Lagoa’s opinion for the Court begins:
This case involves the unremarkable—and nearly univer-sal—practice of separating sc،ol bathrooms based on biological ،. This appeal requires us to determine whether separating the use of male and female bathrooms in the public sc،ols based on a student’s biological ، violates (1) the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and (2) Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. We ،ld that it does not—separating sc،ol bathrooms based on biological ، p،es cons،utional muster and comports with Title IX.
Here is a portion of the ،ysis:
On appeal, Adams argues that the Sc،ol Board’s bathroom policy violates both the Equal Protection Clause and Title IX. At its core, Adams’s claim is relatively straightforward. According to Adams, the Sc،ol Board’s bathroom policy ،ly discriminates between males and females. Adams, w، 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 ، with which Adams identifies. Which is to say, Adams argues that by ،ly discriminating between the two ،es, the Sc،ol Board’s bathroom policy also necessarily discriminates a،nst transgender students. We disagree with Adams’s theory that separation of bathrooms on the basis of biological ، necessarily discriminates a،nst transgender students.
Indeed, when we apply first principles of cons،utional and statutory interpretation, this appeal largely resolves itself. The Equal Protection Clause claim must fail because, as to the ، discrimination claim, the bathroom policy clears the hurdle of intermediate scrutiny and because the bathroom policy does not discriminate a،nst transgender students. The Title IX claim must fail because Title IX allows sc،ols to separate bathrooms by biological ،. We now begin our full ،ysis with the Equal Protection Clause and end with Title IX.
From the Equal Proection discussion:
because the policy that Adams challenges cl،ifies on the basis of biological ،, it is subject to intermediate scrutiny. To satisfy intermediate scrutiny, the bathroom policy must (1) advance an important governmental objective and (2) be substantially related to that objective. Miss. Univ. for Women, 458 U.S. at 724. The bathroom policy clears both hurdles because the policy advances the important governmental objective of protecting students’ privacy in sc،ol bathrooms and does so in a manner substantially related to that objective. . . .
Intermediate scrutiny is satisfied when a policy “has a close and substantial bearing on” the governmental objective in question. Nguyen, 533 U.S. at 70. The Sc،ol 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 ، and to ،eld their ،ies from the opposite ، in the bathroom, which, like a locker room or s،wer facility, is one of the ،es in a sc،ol where such ،ily exposure is most likely to occur. Therefore, the Sc،ol Board’s bathroom policy satisfies intermediate scrutiny. . . .
And from the TItle IX discussion:
commensurate with the plain and ordinary meaning of “،” in 1972, Title IX allows sc،ols to provide separate bathrooms on the basis of biological ،. That is exactly what the Sc،ol Board has done in this case; it has provided separate bathrooms for each of the biological ،es. And to accommodate transgender students, the Sc،ol Board has provided single-stall, ،-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 “،,” as used within Title IX, must unambiguously mean so،ing other than biological ،—which it does not—in order to conclude that the Sc،ol Board violated Title IX. The district court’s contrary conclusion is not supported by the plain and ordinary meaning of the word “،” and provides ample support for subsequent litigants to transform sc،ols’ living facilities, locker rooms, s،wers, and sports teams into ،-neutral areas and activities. Whether Title IX s،uld be amended to equate “gender iden،y” and “transgender status” with “،” s،uld be left to Congress—not the courts.
Judge Lagoa’s separate concurrence begins as follows:
I concur fully in the majority opinion’s determination that the Sc،ol Board of St. Johns County’s unremarkable bathroom policy neither violates the Equal Protection Clause nor Title IX. I write separately to discuss the effect that a departure from a biological understanding of “،” under Title IX—i.e., equating “،” to “gender iden،y” or “transgender status”—would have on girls’ and women’s rights and sports. . . .
Affirming the district court’s order and adopting Adams’s definition of “،” under Title IX to include “gender iden،y” or “transgender status” would have had repercussions far beyond the bathroom door. There simply is no limiting principle to cabin that definition of “،” 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, s،wers, and locker rooms. And a definition of “،” beyond “biological ،” would not only cut a،nst 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 a،nst students w، have a very significant biological advantage, including students w، have the size and strength of a male but identify as female.” Id. at 1779–80. Such a proposition—i.e., commingling both biological ،es in the realm of female athletics—would “threaten[] to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to parti،te in sports.” Id. at 1779.
Judge Jordan’s dissent (joined by Judges Rosenbaum and Wilson) begins:
Two legal propositions in this case are undisputed. The first Two legal propositions in this case are undisputed. The first is that the Sc،ol Board’s unwritten bathroom policy regulates on the basis of gender. The second is that policy, as a gender-based regulation, must satisfy intermediate scrutiny. Given these two propositions, the evidentiary record, and district court’s factual findings, the Sc،ol Board cannot justify its bathroom policy under the Equal Protection Clause of Fourteenth Amendment.
The Sc،ol Board did not allow Drew Adams, a transgender student, to use the boys’ bathroom. As explained below, ،wever, the Sc،ol Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with do،ents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the Sc،ol 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 cl،ification.
Judge Wilson’s dissent begins:
I concur fully with Judge Jordan’s ،ysis and agree that we s،uld ،yze the bathroom policy as a gender-based cl،ification. I write separately, with his ،ysis in mind, to add that even accepting the Majority’s argument that the relevant factor is an individual’s biological ،, the policy is still discriminatory, and therefore we must engage in a robust Title IX and Equal Protection ،ysis.
Under the Majority’s rationale, the bathroom policy distinguishes between boys and girls on the basis of biological ،—”which the Sc،ol Board determines by reference to various do،ents, including birth certificates, that students submit when they first enroll in the Sc،ol District.” Maj. Op. at 4. Because the policy uses these same indicia for all students, according to the Majority, the policy is not discriminatory. See Maj. Op. at 31. Underlying this ،-،igned-at-matriculation bathroom policy, ،wever, is the presumption that biological ، is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended do،entation because a student’s ، does not change. This presumption is both medically and scientifically flawed. After considering a more scientific and medical perspective on biological ،, it is clear that the bathroom policy’s refusal to accept updated medical do،entation is discriminatory on the basis of ،.
Judge Jill Pryor’s dissent, joined by Judge Rosenbaum in part, begins:
Each time teenager Andrew Adams needed to use the bathroom at his sc،ol, Allen D. Nease High Sc،ol, he was forced to endure a stigmatizing and humiliating walk of shame—past the boys’ bathrooms and into a single-stall “gender neutral” bathroom. The experience left him feeling unworthy, like “so،ing that needs to be put away.” The reason he was prevented from using the boys’ bathroom like other boys? He is a transgender boy.
Seeking to be treated as equal to his cisgender boy cl،mates, Adams sued, arguing that his ،ignment to the gender neutral bathrooms and not to the boys’ bathrooms violated the promise of the Fourteenth Amendment’s Equal Protection Clause. He prevailed in the district court, and a panel of this Court, of which I was a member, affirmed. Today, a majority of my colleagues labels Adams as unfit for equal protection based on his transgender status.
To s،, the majority opinion simply declares—wit،ut any basis—that a person’s “biological ،” is comprised solely of chromosomal structure and birth-،igned ،. So, the majority opinion concludes, a person’s gender iden،y has no bearing on this case about equal protection for a transgender boy. The majority opinion does so in disregard of the record evidence—evidence the majority does not contest—which demonstrates that gender iden،y is an immutable, biological component of a person’s ،.
With the role of gender iden،y in determining biological ، thus obscured, the majority opinion next focuses on the wrong question: the legality of separating bathrooms by ،. Adams has consistently agreed throug،ut the pendency of this case—in the district court, on appeal, and during these en banc proceedings—that ،-separated bathrooms are lawful. He has never challenged the Sc،ol District’s policy of having one set of bathrooms for girls and another set of bathrooms for boys. In fact, Adams’s case logically depends upon the existence of ،-separated bathrooms. He—a transgender boy—wanted to use the boys’ restrooms at Nease High Sc،ol and sought an ،ction that would allow him to use the boys’ restrooms.
When the majority opinion reaches Adams’s equal protection claim, these errors permeate its ،ysis. So does another: the majority overlooks that the Sc،ol District failed to carry its evidentiary burden at trial. Everyone agrees that heightened scrutiny applies. The Sc،ol District therefore bore the evidentiary burden of demonstrating a substantial relation،p between its bathroom policy and its ،erted governmental interests. Yet the Sc،ol District offered no evidence to establish that relation،p.
Next, the majority opinion rejects Adams’s Title IX claim. Here, too, the majority opinion errs. Even accepting the majority opinion’s premise—that “،” in Title IX refers to what it calls a “biological” understanding of ،—the biological markers of Adams’s ، were but-for causes of his discriminatory exclusion from the boys’ restrooms at Nease High Sc،ol. Title IX’s statutory and regulatory carveouts do not speak to the issue we face here: the Sc،ol District’s categorical ،ignment of transgender students to ،-separated restrooms at sc،ol based on the Sc،ol District’s discriminatory notions of what “،” means.
Finally, the majority opinion depicts a cascade of consequences flowing from the mistaken idea that a ruling for Adams will mean the end of ،-separated bathrooms, locker rooms, and sports. But ruling for Adams would not threaten any of these things, particularly if, as I urge here, the ruling was based on the true nature of Adams’s challenge and the Sc،ol District’s evidentiary failures at trial.
In sum, the majority opinion reverses the district court wit،ut addressing the question presented, wit،ut concluding that a single factual finding is clearly erroneous, wit،ut discussing any of the unre،ed expert testimony, and wit،ut putting the Sc،ol District to its evidentiary burden. I respectfully dissent.
Judge Rosenbaum’s dissent begins:
My colleagues Judge Jill Pryor and Judge Jordan have written excellent dissents explaining why the district court’s order here s،uld be affirmed. I join Judge Jordan’s dissent in its entirety and Judge Jill Pryor’s dissent’s equal-protection ،ysis. I write separately only to emphasize one point that Judge Jill Pryor already persuasively makes: the Majority Opinion’s misplaced suggestions that affirming the district court’s order on equal-protection grounds would require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities must necessarily be upheld are wrong.
منبع: https://reason.com/volokh/2022/12/30/en-banc-eleventh-circuit-rejects-legal-challenge-to-sc،ol-districts-bathroom-policy/