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Eleventh Circuit Ruling Upholds Florida School District’s Transgender Bathroom Ban Creating a Circuit Split

on Thursday, 19 January 2023 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On December 30, 2022, in a 7-4 opinion the Eleventh Circuit Court of Appeals upheld a school district’s policy banning transgender students from using bathrooms that correspond with their gender identity, creating a circuit split. In Adams v. School Board of St. Johns County, Florida, the Eleventh Circuit issued a 150 page opinion which held that the school district’s policy did not violate the Constitution or Title IX of the U.S. Education Amendments of 1972.

In so holding, the Eleventh Circuit concluded that the ban is constitutional because it satisfied the intermediate scrutiny standard of judicial review: the policy is substantially related to an important governmental objective—“the protection of students’ privacy interests in using the bathroom away from the opposite sex and in shielding their bodies from the opposite sex.” The court further noted that because sex-neutral bathrooms were available, the school board did not impose a special burden on transgender students.

In addressing whether the policy violated Title IX, the court held that the school district’s ban fit into Title IX’s express statutory and regulatory carve-outs, which allow for differentiating between sex in living and bathroom situations. Notably, the court refused to amend the definition of “sex” to equate to “gender identity” and “transgender status,” instead leaving that up to Congress to decide. According to the Eleventh Circuit, the word “sex” in educational programs means being a biological “male” or “female.”

Judge Barbara Lagoa, who delivered the majority opinion, also authored a separate concurrence in which she asserted that Adams’ proposed definition of “sex” “would have had repercussions far beyond the bathroom door.” According to Lagoa, such a definition would “undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.”

The court’s Title IX analysis and refusal to expand the definition of “sex” begs the question, what impact—if any—the holding in Adams will have on employers subject to Title VII of the Civil Rights Act of 1964. Recall that in June of 2020 the Supreme Court in Bostock v. Clayton County expanded the definition of “sex” under Title VII to encompass gender identity. The Court held that an employer was prohibited from firing an employee based on the employee’s gender identity. However, it said nothing about whether Title VII requires employers to allow transgender persons to use sex-segregated facilities that match their gender identity.

Post-Adams, employers are no better off than before in terms of judicial guidance on this issue. The holding in Adams does not implicate Title VII and relies on express carve outs in Title IX that Title VII does not contain. Because the law remains murky, it seems likely that such a claim under Title VII may be in the future.

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