Eleventh Circuit Extends Bostock to Protect Transgender Students under Title IX

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Adams v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286 (11th Cir. 2020).

Factual Summary:

Drew Adams is a transgender male who was prohibited from using the boys’ restroom at his public high school. In the eighth grade, Adams came to realize that he was transgender, and following medical advice, began to transition to life as a boy. Over a period of a year, he changed his name, began using “he/him” pronouns, cut his hair, dressed in masculine clothing, and in time, underwent hormonal therapy and surgery. Alongside his medical and social transition, Adams also amended legal documents including his driver’s license and birth certificate to reflect his sex marker as “male.” In almost all respects, Adams was considered by school officials to be a boy; however, the district’s unwritten bathroom policy required that students use restrooms that conform to their “biological sex.” Adams was required to choose between using the girls’ restroom or a single-stall unisex restroom or risk discipline under the school’s conduct code.

Procedural History: 

The U.S. Court of Appeals for the Eleventh Circuit upheld the district court’s decision, which held that the school district’s bathroom policy violated both Title IX and the Equal Protection Clause of the 14th Amendment.

Significance:

The Eleventh Circuit readily applied the U.S. Supreme Court’s holding in Bostock v. Clayton County to determine that the district’s bathroom policy amounted to unconstitutional and impermissible discrimination on the basis of being transgender. In Bostock, the Supreme Court held that “discrimination against a transgender individual because of [his or] her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” 590 U.S. ___, 140 S.Ct. 1731, 1741 (2020). In Adams, the Eleventh Circuit agreed that the gender classification here violated the Equal Protection Clause because the district’s justification – students’ privacy interests in the bathrooms – was not substantiated in the record.

Similarly the Eleventh Circuit held that under Title IX, the bathroom policy excluded Adams from the boy’s restroom simply because he is transgender, which constituted impermissible discrimination on the basis of sex. The court focused on the effect that the bathroom policy had on Adams solely because of his transgender status. “[B]ecause Mr. Adams is a transgender boy, the School Board singled him out for different treatment. By the very terms of the bathroom policy, the Board refused to allow Adams, ‘a transgender student[,] access to the restroom corresponding to [his] consistently asserted transgender identity.” 968 F.3d at 1306.  Furthermore, Adams suffered considerable harm from this differential treatment, which violates Title IX’s prohibition on sex discrimination.

Key Takeaways:

  • Courts look to Title VII cases as persuasive precedent for Title IX analysis. Title IX practitioners anticipated correctly that the Supreme Court’s June 2020 Bostock decision would have a significant impact on the interpretation of Title IX as applied to transgender students and employees. Unsurprisingly, the Eleventh Circuit followed closely on the heels of the Fourth Circuit in the long-running case involving Gavin Grimm, following Bostock to hold that a bathroom policy that has the effect of singling out transgender students discriminates on the basis of sex in violation of both the 14th Amendment’s Equal Protection Clause and Title IX.
  • The Eleventh Circuit joins several other federal circuit courts in reaching this conclusion in bathroom access cases, including the Fourth Circuit, the Sixth Circuit, and the Seventh Circuit.  These four circuits encompass fifteen states, not withstanding many additional federal district courts and/or state courts that have reached similar holdings in bathroom access cases.
  • Long-standing best practice has held that students and employees may use restrooms and locker rooms consistent with their gender identity. The majority of courts that have grappled with the underlying legal questions have reached this same conclusion, and we can expect that the Bostock decision will only accelerate analogous cases under Title IX, as it has done here.
  • If your school district or college continues to have a bathroom policy that relies on “biological sex,” please reconsider it immediately, unless you are able to assert a Title IX exemption as a religious organization.
  • Additionally, the field should anticipate that the Biden administration will reinstitute federal guidance that students and employees have the right to use bathrooms and locker rooms consistent with their gender identity.

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