School Bathroom Policy Based on Biology Upheld

Jan 3, 2023

ATLANTA, GA – The Eleventh Circuit Court of Appeals ruled 7-4 that a Florida public school district’s bathroom policy based on biological sex does not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution or the federal Title IX law. 

In Adams v. School Board of St. Johns County, the Eleventh Circuit reversed and remanded the district court’s previous order regarding a student’s statutory and constitutional challenge to a school district policy barring students from using bathrooms that do not correspond with their biological sex. Drew Adams, a biological girl in Florida, wanted to use the boys’ restrooms instead of either the girls’ restrooms or the single-stall restrooms that the school made available for students. 

In the majority opinion, Judge Barbara Lagoa wrote, “This case involves the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex. This appeal requires us to determine whether separating the use of male and female bathrooms in the public schools based on a student’s biological sex 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 hold that it does not—separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.”   

The appeals court wrote that the school’s bathroom policy does not violate the Equal Protection Clause because it “clears the hurdle of intermediate scrutiny” and “does not discriminate against transgender students” and it “advances the important governmental objective of protecting students’ privacy in school bathrooms and does so in a manner substantially related to that objective.”

Judge Lagoa further stated that the bathroom policy also does not discriminate against “transgender” students because it classifies on the basis of sex, not transgender status or gender identity. 

“Because the bathroom policy divides students into two groups, both of which include transgender students, there is a ‘lack of identity’ between the policy and transgender status, as the bathroom options are ‘equivalent to those provided to all’ students of the same biological sex…The contention that the School Board’s bathroom policy relied on impermissible stereotypes associated with Adams’s transgender status is wrong. The bathroom policy does not depend in any way on how students act or identify.” 

The court ruled that the school district’s bathroom policy also does not violate Title IX because the federal civil rights law provides a provision with respect to “living facilities,” and the regulations implementing Title IX explicitly permit schools receiving federal funds to provide “separate toilet, locker room, and shower facilities on the basis of sex.” 

Judge Lagoa even wrote a special concurrence that addressed what a contrary ruling on Title IX would mean for girls’ and women’s rights and sports. 

“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’…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.’” 

“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.” 

Liberty Counsel Founder and Chairman Mat Staver said, “This a commonsense decision by the Eleventh Circuit Court of Appeals that protects the privacy and safety of all students. Biology is fixed at birth and giving legal credence to fiction would undermine the law and cause chaos and significant harm.” 

Liberty Counsel provides broadcast quality TV interviews via Hi-Def Skype and LTN at no cost.