Appellate Court Upholds Florida School’s Policy on Bathroom Access Based on Biological Sex

In Adams v. School Board of St. Johns County, Florida, et al., the Eleventh Circuit Court of Appeals (which has jurisdiction over Alabama, Florida, and Georgia) held that a Florida high school district’s policy requiring students to use bathrooms corresponding with their biological sex is constitutional and does not violate the Equal Protection Clause or Title IX.

A transgender male student was allowed to use the restroom aligned with his gender identity for the first nine weeks of high school. After receiving a complaint, the school reversed its policy and required the student to use female facilities or a gender-neutral, single-stall facility in the school office. The student and his mother sued the school district, arguing that the bathroom policy violates both the Equal Protection Clause and Title IX by discriminating between males and females. Specifically, the student, who identifies as a male, argues that the policy violates his rights because, as a transgender student, he cannot use the bathroom that corresponds to the sex with which he identifies. A Florida federal district court ruled in his favor. The school district appealed.

As we previously reported, on August 7, 2020, a three-judge panel on the Eleventh Circuit initially upheld the district court’s decision. The appellate court held that the school’s policy requiring different treatment of students based on sex (i.e., transgender status) violated Title IX because it resulted in discrimination based on sex. Additionally, because the policy resulted in different treatment of transgender students because of their transgender status, the student’s rights under the Equal Protection Clause also was violated.

However, the full appellate court decided to review the case “en banc,” in which a case is heard before all the judges of a court rather than by a smaller panel of judges. En banc review is typically reserved for unusually complex or important cases or when the court feels there is a particularly significant issue at stake.

The en banc Eleventh Circuit, in a split 7-4 opinion issued on December 30, 2022, rejected the student’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students. The majority of the en banc Eleventh Circuit held that the school district’s bathroom policy does not violate the Equal Protection Clause or Title IX, emphasizing that “[t]his case involves the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex” and that “separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.”

This case is of critical importance because it contradicts prior decisions from other federal appellate courts—including the binding precedent over Illinois in Whitaker v. Kenosha Unified School District—upholding the rights of transgender students to access facilities based on their gender identity. The Eleventh Circuit’s decision thereby makes the issue of whether transgender students have a protected right to use the school restroom and locker room facilities consistent with their gender identity ripe for review by the Supreme Court of the United States. While this development is worth following as to the federal rights at stake, Illinois schools also should note that state law, namely the Illinois Human Rights Act, also provides certain protections to transgender students.

For questions about this case or transgender-student matters more generally, please contact Jessica Nguyen in our Students/Special Ed practice group.

Source: Adams v. School Board of St. Johns County, Florida, et al., No. 18-13592 (11th Cir. Dec. 30, 2022)