The Eleventh Circuit Court of Appeals recently became the first Federal appellate court to decide that a school policy separating student bathrooms based on “biological sex” “passes constitutional muster and comports with Title IX.” Three judges dissented.

According to the seven-judge majority’, bathrooms can be segregated by “biological sex” as evidenced by the student’s enrollment documents even if doing so excludes transgender students from bathrooms matching their gender identities. Such a rule is not required, but the decision gives a green light within the Eleventh Circuit’s jurisdiction (Alabama, Florida, and Georgia) for schools to choose to implement such a rule.

The decision, Adams v. School Board of St. Johns County, Florida, conflicts with decisions by two other Federal appellate courts and does not change the law in those states (Illinois, Indiana, Maryland, North Carolina, South Carolina, Virginia, West Virginia, and Wisconsin). So, it may be well-suited for review by the U.S. Supreme Court.

Unless and until that happens, however, the 150-page decision adds to school leaders’ confusion about handling requests from transgender students. The case leaves many unanswered questions, even for schools within the Eleventh Circuit’s jurisdiction and jurisdictions like the Fifth Circuit (Louisiana, Mississippi, Texas), which do not have a conflicting decision. It could even raise questions for any employer subject to Title VII when addressing a request about facilities by a transgender employee. So much for legal opinions clarifying the law for us!

So, what do you need to know? Here are four fundamental takeaways to help cut through the confusion on this critical case.

1. What About Bostock?

The Adams majority opinion did not answer most of the unanswered questions from the U.S. Supreme Court’s June 2020 case, Bostock v. Clayton County, but it raised many arguments that could be used to do so.

Bostock held that an employer subject to Title VII of the Civil Rights Act of 1964 cannot fire an employee based on the employee’s gender identity (e.g., because the employee is transgender) or sexual orientation (e.g., because the employee is gay). Such a decision is based on “traits or actions” the employer “would not have questioned in members of different sex.” For example, an employer cannot fire an employee assigned the sex of male at birth for wearing feminine clothes and using a feminine name and pronouns if it would not fire an employee assigned the sex of female at birth for wearing feminine clothes and using a feminine name and pronouns.

Bostock left for another day the question of whether Title VII requires allowing transgender persons to use sex-segregated facilities (bathrooms, locker rooms, etc.) matching their gender identity. It also did not decide what rights transgender students have under the U.S. Constitution’s Equal Protection Clause or Title IX.

The majority in the Adams case did not address most of Bostock’s unanswered questions, either. It did not decide whether Title VII allows transgender persons to use sex-segregated facilities. It also did not decide whether Title IX prevents different treatment or harassment based on gender identity or transgender status when student school facilities are not involved. Instead, it addressed only the narrow question of whether a law separating bathrooms based on “biological sex” assigned at birth passes muster under constitutional law and Title IX. In answering that limited question, the Adams majority said, “Yes.”

However, the reasoning in the Eleventh Circuit majority opinion could be used to argue that Title VII does not require employers to allow transgender employees to use the bathroom matching their gender identity. Similarly, the case raises many points that could support a reading of the Equal Protection Clause and Title IX that does not protect transgender individuals concerning rights other than facilities and athletics. I’ll talk about those arguments below.

The key takeaway?

Takeaway #1: Because of the broad arguments the court used to reach its decision, schools and employers may see an uptick in complaints about transgender individuals’ rights in situations different from the one in this case. Even for entities in the Eleventh Circuit, employers still don’t have a clear answer about handling requests by transgender employees regarding facilities. The Adams case also did not decide whether Title IX protects LGBTQIA students from harassment or different treatment, such as different grading of a student for gender identity or sexual orientation. Although OCR and the EEOC both interpret Federal civil rights laws to protect such rights, their authority has been challenged significantly on the issue in some states. The law is confusing and changing quickly in this area, so working closely with legal counsel if you receive a request is essential.

2. What is “Biological Sex,” Anyway?

The majority found no different treatment in Adams because the District’s bathrooms are separated by “biological sex” assigned at birth, not gender identity. But the decision highlights the serious debate as to what “biological sex” means for schools even within the court’s jurisdiction. The case raises many issues for consideration for schools considering using the term to separate bathrooms and other facilities.

According to the majority opinion, the school’s policy has long been that students must use bathrooms corresponding to their “biological sex.” To this school, that means the student’s sex assigned at birth, generally based on a baby’s physical reproductive characteristics and as indicated on the student’s birth certificate used to first enroll in the school.

The fact that restrooms were based on this understanding of “biological sex” was essential for the majority in Adams. The court determined that the school’s policy didn’t treat the transgender student in the case differently at all. The student, assigned the sex of female at birth, was treated no differently than a student assigned the sex of male at birth who had transitioned. Both students were required to use the bathrooms matching their sex assigned at birth, the court said, so there was no different treatment based on sex.

But defining “biological sex” in that way is not a given under the law. As one dissent pointed out, a biological basis has been determined for gender identity. Arguably, gender identity is as proper a basis for “biological sex” as any other factor. The majority opinion said that the school’s bathroom policy is not based on gender stereotypes because “biological sex … is not a stereotype.” But to at least one dissenter, reliance on sex designated at birth, chromosomal makeup, and other physical characteristics may be based on gender stereotypes that ignore the potential biological impact of gender identity. The definition also does not address how to categorize intersex students, who are born with a combination of male and female physical biological traits.

The key takeaway?

Takeaway #2: This case may add to the confusion about what “biological sex” means when separating bathrooms, not make it more transparent. The various decisions provide several reasonable arguments. Even schools in the Eleventh Circuit should carefully consider all the arguments raised about this question when deciding how to define the term for their use.

3. Is Your Bathroom Private Enough?

The Adams majority said that even if there was different treatment, privacy considerations justify separating bathrooms by “biological sex.” The dissenters, however, claimed that the rules do not ensure privacy and should not pass constitutional muster.

According to the majority opinion, even if the case involved different treatment based on sex, the school’s policy is not unconstitutional under the relevant (“intermediate scrutiny”) test for sex-based governmental decisions. Specifically, the court found the policy advances an important governmental objective (protecting student privacy), is substantially related to that objective, and so is constitutional.

According to the court, students change in bathrooms, and there are undivided urinals in the male bathrooms. Even if a transgender male student can use a private stall, other students in the bathroom’s physical body parts are potentially exposed to the transgender student.

As one of the dissents points out, however, the rule does not prevent the impacts on privacy used to justify it. Some individuals are “intersex” and may be assigned one sex at birth but still have the physical characteristics of the other sex. And if a new student moves to the District, the school does not verify that the student was assigned the sex on their birth certificate. That means a transgender student can move to the District after changing the birth marker on their birth certificate and use the bathroom that matches their gender identity, even though they may have the physical characteristics of the other sex.

For all of these reasons, the dissent argued that the District’s policy failed the second prong of the intermediate scrutiny test; the policy is irrational and not substantially related to the objective of protecting privacy. Instead, it is aimed at excluding transgender students.

The key takeaway?

Takeaway #3: Again, confusion is the name of the game. Schools should carefully consider all arguments about privacy raised in this case before implementing a “biological sex” bathroom rule based on privacy considerations.

4. Wait, Isn’t This a Title IX Blog?

Yes, it is! So let’s talk about Title IX. The Adams case directly addressed a key issue with which many courts, agencies, and schools are grappling: Does Title IX require allowing a transgender student to use the bathroom matching their gender identity? The Eleventh Circuit said, “No.”

Why? As noted previously, not because the Eleventh Circuit determined that Title IX doesn’t protect transgender students at all. Instead, the majority relied primarily on the fact that Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for differentiating between the sexes when it comes to separate living and bathroom facilities, among others. Therefore, if to “provide separate toilet . . . facilities on the basis of sex” means to provide separate bathrooms on the basis of biological sex, the School Board’s policy fits squarely within the carve-out. And, as noted previously, the majority opinion held that it does. So the majority quickly disposed of the Title IX question without much analysis.

The key takeaway?

Takeaway #4: There are many moving pieces right now regarding Title IX and facilities. Many of the same uncertainties also can apply to decisions about transgender students’ participation in sports. OCR and many courts interpret Title IX to apply to transgender students, including concerning facilities and sports, although OCR’s authority has been challenged in some states on the issue. Schools should continue to consider whether state or federal law, as interpreted in their jurisdiction, requires granting a transgender student’s facilities request.

We know none of this is easy, but we hope this sheds some light on this high-profile decision. If your educational institution needs assistance working through these difficult questions, contact me at titleIX@thlaw.com or contact any other member of Thompson & Horton’s Title IX team.