In Adams v. School Board of St. Johns County, Florida, (11th Cir., Dec. 30, 2022), the U.S. 11th Circuit Court of Appeals sitting en banc in a 7-4 decision held that separating use of male and female bathrooms in public schools based on students’ biological sex does not violate either the Equal Protection Clause or Title IX. The six opinions filed in the case span 150 pages. A 3-judge panel in a 2-1 decision had previously ruled to the contrary. The majority opinion on en banc review said in part:
The School Board’s bathroom policy is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur. Therefore, the School Board’s bathroom policy satisfies intermediate scrutiny.
The district court avoided this conclusion only by misconstruing the privacy interests at issue and the bathroom policy employed…. [T]he bathroom policy does not unlawfully discriminate on the basis of biological sex….
The policy impacts approximately 0.04 percent of the students within the School District—i.e., sixteen transgender students out of 40,000 total students—in a manner unforeseen when the bathroom policy was implemented. And to accommodate that small percentage, while at the same time taking into account the privacy interests of the other students in the School District, the School Board authorized the use of sex-neutral bathrooms as part of its Best Practices Guidelines for LGBTQ issues….
Contrary to the dissent’s claim, the School Board, through the Best Practices Guidelines, did not discriminatorily “single out transgender students.” … The School Board sought to accommodate transgender students by providing them with an alternative—i.e., sex-neutral bathrooms—and not requiring them to use the bathrooms that match their biological sex— i.e., the bathroom policy Adams challenges…. Ultimately, there is no evidence of purposeful discrimination against transgender students by the School Board, and any disparate impact that the bathroom policy has on those students does not violate the Constitution.
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