We now have a split in the Circuit Courts on the issue of which bathroom transgender students can use. This sets it up for a SCOTUS decision, but of course, that is a few years away. In the meantime, the 11th Circuit’s decision is worth studying.
The school board in St. John’s County, Florida required all students to use the bathroom that matched their biological sex at birth. There was an alternative—gender neutral restrooms available to all students. This meant that Drew Adams could either use the girls’ restroom or the neutral one, but he could not use the boys’ restroom.
Drew was born a girl and identified as female when enrolling in the district in the 4th grade. However, Drew began to transition in 8th grade, and entered high school identifying as male, using male pronouns and, at first, using the boys’ facilities. Then a couple of students complained. The school officials informed Drew that the boys’ bathroom was off limits for him. Litigation followed.
I’ll just cut to the chase on the court’s en banc 50-page ruling. The court held that the school’s policy did not violate the Equal Protection Clause of the Constitution, did not discriminate on the basis of sex or transgender status, and did not violate Title IX. Seven members of the 11th Circuit agreed with that. Four members dissented.
For Texas school districts that choose to enact a policy like the one in St. John’s, this decision provides support. It is the first Circuit Court decision to uphold a school policy barring transgender students from using the restroom that matches their gender identity. There are other Circuit Court decisions that have gone the other way—thus, a circuit split.
Districts that want to follow the 11th Circuit’s lead would be wise to also do the work that led to the district’s policy. The district “engaged in a comprehensive review of LGBTQ issues affecting students.” This involved research, attendance at conferences and consultation with LGBTQ students and organizations. The district created a task force “which met with ‘district administrators,….principals,….attorneys, ….guidance counselors, and mental health therapists’ to hear ‘every perspective ‘ on emerging LGBTQ issues.” All this work resulted in a set of Best Practice Guidelines that included: “Transgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.”
That accommodation would have satisfied some transgender students, but not all. It did not satisfy Drew Adams, who felt that he was being forced into a humiliating “walk of shame” as he bypassed the boys’ bathroom to go to the neutral one.
So where are we? The law remains unsettled, and lawsuits can be filed by people on either side of the Bathroom Wars. Stay in touch with your school attorney on this issue.
It’s Adams v. School Board of St. John’s County, Florida, decided en banc by the 11th Circuit (7-4) on December 30, 2022 and is located at 2022 WL 18003879.
DAWG BONE: CIRCUITS SPLIT ON THIS, JUST LIKE THE COUNTRY DOES.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: another transgender case, this time about athletics…..