What's Wrong (and One Thing That's Right) with an 11th Circuit Ruling Allowing a Florida School District's "Biological Sex" Restroom Policy

 by Michael C. Dorf

In Bostock v. Clayton County, the Supreme Court held that the prohibition on sex-based discrimination in employment found in Title VII of the 1964 Civil Rights Act encompasses a prohibition based on sexual orientation discrimination as well as on gender identity discrimination. Relying chiefly on the text of Title VII, Bostock's holding pretty clearly should also apply to Title IX (of the Education Amendment Acts of 1972), which forbids sex discrimination in and by federally funded educational institutions. The relevant language of Title IX does not materially differ from the language of Title VII. However, Bostock left unresolved important questions that are now working their way through the lower courts.

One such question is whether and how Bostock applies to the federal constitutional requirement of equal protection (rooted in the Equal Protection Clause of the Fourteenth Amendment with respect to state and local government actors, while rooted in the Due Process Clause of the Fifth Amendment with respect to the federal government). Since the 1970s, case law has subjected sex discrimination to (at least) intermediate scrutiny and sometimes to the seemingly stricter requirement of an "exceedingly persuasive justification."  The logic of Bostock appears fully applicable to federal equal protection, requiring that even outside the areas covered by federal civil rights statutes, sexual orientation discrimination and gender identity discrimination by government actors must satisfy the same test as conventional sex discrimination. However, because the word "sex" does not appear in the Fifth Amendment or the relevant portion of the Fourteenth Amendment, the strictly text-based argument from Bostock would need to be adapted at least a little to make it applicable to the constitutional context.

Bostock also left open questions of application, including the implications of the holding for sex-segregated public bathrooms and locker rooms. Writing for the majority in Bostock, Justice Gorsuch said that the Court did "not purport to address bathrooms, locker rooms, or anything else of the kind."

Last week, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, addressed both of these questions. In Adams v. School Board of St. Johns County, the court rejected a transgender boy's challenge under the Equal Protection Clause and Title IX to a school board policy that denies him access to the boys' bathroom at his Florida public high school. The policy relegates him either to a gender-neutral bathroom or the girls' bathroom, which the school policy and the court deem the bathroom that matches his "biological sex." As I shall explain, I believe the court erred badly in its bottom line in Adams, but it also got something important right about both equal protection and Title IX.

Let's start with the good news. One could imagine a court eager to distinguish Bostock quoting Justice Gorsuch's language withholding judgment on bathrooms and locker rooms as a prelude to saying something like neither equal protection nor Title IX poses any limits on a public high school's bathroom policy. To its credit, the court didn't go there.

With respect to equal protection, the court acknowledged that sex-segregated public restrooms trigger intermediate scrutiny in the same way as would any other form of sex-based distinctions. The court also rightly acknowledged that Title IX prima facie forbids sex-segregated bathrooms, upholding the school policy only because Title IX contains a carve-out that "expressly permits separating the sexes when it comes to bathrooms and other living facilities."

But now the trouble starts. That last phrase should strike readers as peculiar. "Bathrooms and other living facilities" indicates that the court thinks bathrooms are living facilities, which they plainly are not. The court uses this odd phrasing because the statutory carve-out applies to sex-segregated "living facilities" but says nothing about bathrooms. As the court acknowledges elsewhere in its opinion, the carve-out for bathrooms appears not in the statutory text but in a federal regulation allowing Title IX-covered entities to maintain sex-separated-but-equal "toilet, locker room, and shower facilities."

Whether that regulation (adopted in 1980) is authorized by the statute is arguably an open question. Hopefully, it will be rendered moot if and when the amendments outlined in a Notice of Proposed Rule Making (NPRM) issued last July become a set of final rules. The NPRM proposes a new regulatory provision that

would clarify that in the discrete circumstances when Title IX or the regulations permit[] a recipient to separate or treat persons differently on the basis of sex, a recipient must not do so in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm unless otherwise permitted by Title IX or the regulations.

The NPRM would thus provide transgender students a regulatory carve-out from the existing regulatory carve-out for sex-segregated bathrooms and locker rooms. But that's not all it would do. It would also offer a sound basis for the bathroom/locker-room carveout itself. As I've indicated, it's quite difficult to explain the existing regulatory carve-out for sex-segregated bathrooms and locker rooms as implementing the statutory carve-out for "living facilities." The NPRM doesn't try to do so. Instead, it offers a completely different account of the separate-but-equal sex-segregated bathrooms and locker rooms as imposing at most de minimis harm on cisgender students. The NPRM cites the Supreme Court's decision in Oncale v. Sundowner, which stated that Title VII "does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." So too for Title IX. The NPRM explains that

in certain situations, the fact that a recipient employs a sex-based distinction or separation does not, as such, amount to ‘‘discrimination’’ that Title IX forbids in the first place. In particular, to the extent separation or different treatment based on sex imposes no harm or only de minimis harm, it will not amount to discrimination on the basis of sex under Title IX.

In this respect the NPRM would clarify the law, not change it. The best way to make sense of the existing regulatory carve-out is as implementing the assumption that not all sex-based classifications amount to sex-based discrimination. Indeed, that's probably the only way to make sense of the existing regulatory carve-out--the en banc Eleventh Circuit's absurd implicit contention that bathrooms are "living facilities" being the only alternative.

Put differently, there is only one non-absurd way to say that Title IX permits sex-segregated bathrooms and locker rooms even with respect to cisgender students--and that is by saying that de minimis harms from separate-but-equal sex segregation do not constitute discrimination on the basis of sex. But once one acknowledges that--as one must--then it should follow inexorably that Title IX disallows sex segregation where the harm is more than de minimis, as it is when applied to transgender students to subject them to the very substantial dignitary harm of denying them access to the bathroom that corresponds to their gender identity.

As readers will have by now gleaned, I strongly support the approach of the NPRM. Indeed, it very closely tracks the argument of an amicus brief that Sam Bagenstos, Marty Lederman, Leah Litman, and I filed in 2017 in the SCOTUS case of Gloucester County School Bd. v. G.G. (which the Court ultimately did not decide on the merits). Our brief also reveals what's wrong with the rest of the Eleventh Circuit's analysis in Adams.

The court says that the school's bathroom policy satisfies intermediate scrutiny because it serves an interest in privacy for students who do not wish to expose themselves to persons who are of a different sex--as might happen at a urinal in a boys' bathroom or for a student who chooses to change clothes in a bathroom but not behind a stall door. But as our Gloucester County amicus brief noted:

There is hardly a school restroom in the nation where any student must expose 'his or her nude or partially nude body, genitalia, and other private parts' to anyone.  . . . [Footnote:] For example, no student is required to use urinals; but if a school wishes to preserve boys’ ability to do so without exposing their genitals to others in the restroom, the school can build barriers between urinals.

So here's what the court ought to have said:

(1) The bathroom policy satisfies Title IX as applied to cisgender students because it falls within the regulatory carve-out, which, in order to be within the scope of Title IX, must be understood as implementing the principle that sex segregation that causes de minimis harm isn't sex discrimination. As applied to transgender students, the policy imposes substantial harm and therefore does not fall within the regulatory carve-out; alternatively, as applied to transgender students, the regulatory carve-out is invalid as beyond the scope of Title IX; in any event, as applied to transgender students, the bathroom policy violates Title IX.

(2) How about equal protection? As I've noted, the interest in protecting privacy isn't really implicated, given the availability of restroom stalls, so the bathroom policy doesn't satisfy intermediate scrutiny, at least as applied to transgender students. (As Judge Jordan notes in dissent in Adams, the policy is also substantially under-inclusive with respect to the ostensible privacy interest because it does allow transgender students to use the bathroom corresponding to their gender identity if they first enroll in the district with documentation after they have transitioned.)

The difficulty here is explaining why the bathroom policy is nonetheless valid as applied to cisgender students if it fails intermediate scrutiny. My answer would be that intermediate scrutiny is essentially a balancing test. (E.g., Justice Thomas's opinion for the Court in NYS Rifle & Pistol v. Bruen says that when the Court in D.C. v. Heller "expressly rejected" an "interest-balancing inquiry . . . it necessarily rejected intermediate scrutiny.") While the privacy interest is weak in all cases, keeping cisgender boys out of girls' bathrooms and cisgender girls out of boys' bathrooms does no or de minimis harm to those cisgender students; thus, even a weak privacy interest suffices to outweigh the nonexistent or de minimis harm to cisgender students.

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Before concluding, I want to add a couple of thoughts about how the Eleventh Circuit handled Bostock. The en banc majority says that Bostock held that discrimination based on gender identity necessarily is discrimination based on sex but not the converse: i.e., that discrimination based on "biological sex" is not necessarily discrimination based on gender identity.

That strikes me as a bit of a logical pretzel. It's true that as a general matter a proposition does not entail its converse. And certainly it's easy to come up with instances of sex discrimination that aren't also gender identity discrimination. But so what? As the en banc court acknowledges (because it must), discrimination based on "biological" sex is discrimination based on sex--which is what Title IX forbids. And if it doesn't fall within the regulatory carveout (as I've argued it does not), such sex discrimination is illegal.

Compounding its error, the Eleventh Circuit is also wrong in its further claim that the school's bathroom policy doesn't discriminate based on gender identity. Of course it does. The very notion of "biological sex"--"which the School Board determines by reference to various documents, including birth certificates, that students submit when they first enroll in the School District"--as a basis for how to determine whether someone is male or female necessarily denies the gender identity of transgender students. If there were any doubt that the school's "biological sex" policy discriminates against transgender students, there is this: "The School Board does not accept updates to students’ enrollment documents to conform with their gender identities."

The Eleventh Circuit points to other ways in which the school accommodates transgender students, but that really is beside the point. Whatever the subjective views of the school board, the policy with respect to bathrooms unlawfully discriminates based on gender identity.