After Bostock: 11th Circuit Extends Landmark Case and Strikes Down School's Transgender Bathroom Policy Under Title Ix and the Equal Protection Clause

• Publication year: 2021

After Bostock: 11th Circuit Extends Landmark Case and Strikes Down School's Transgender Bathroom Policy Under Title IX and the Equal Protection Clause

Ben T. Tuten

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After Bostock: 11th Circuit Extends Landmark Case and Strikes Down School's Transgender Bathroom Policy Under Title IX and the Equal Protection Clause^*

I. Introduction

When Drew Adams walked into Nease High School one fall day and was told that he could no longer use the boy's restroom at school, he could never have known that years down the road his case would be so important to so many others. In the past decade, there has been a heated debate over transgender rights broadly, and specifically whether it was permissible to ban transgender persons from using the bathroom corresponding to their gender identity.

The landscape changed in June 2020 with the U.S. Supreme Court's decision in Bostock v. Clayton County.¹ In Bostock, the Court expanded protections for transgender persons under Title VII and reignited the conversation over the legal scope of transgender rights.²

With the case of Drew Adams before them, the United States Court of Appeals for the Eleventh Circuit had one of the first opportunities to interpret both Title IX and the Equal Protection Clause through the lens of Bostock, and the courts decision to affirm Mr. Adams's claims on both fronts will frame the debate for months and years to come.

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II. Factual Background

Drew Adams was a student at Nease High School in Florida's St. Johns County School District. Mr. Adams is transgender. He was assigned female gender at birth, but today lives his life as a male.³

Mr. Adams's designation as female caused him severe anxiety and depression throughout his early life, leading him to seek help from mental health professionals. By the time he reached the eighth grade, he had come to the realization that he was a boy, not a girl. A diagnosis of gender dysphoria supported this realization. Gender dysphoria is a condition that causes debilitating anxiety in a person whose gender identity is different from the sex they were assigned at birth. To treat this, Mr. Adams's psychiatrist recommended that he make the transition to living as a male.⁴

Along with the social transition, Mr. Adams began taking medical steps to treat his gender dysphoria. He started on a regimen of birth control and testosterone and underwent a bilateral mastectomy to remove his breast tissue. He successfully petitioned Florida to change the sex indicator on both his driver's license and birth certificate to reflect his gender as male.⁵

Mr. Adams began attending Nease High School, a public school, after socially transitioning to living as a male. He exclusively used the boy's bathroom for about two months but was then forbidden from doing so by school officials after they received complaints from two female students. Instead, school administrators required him to use either a single-stall, gender-neutral bathroom, or one of the women's restrooms.⁶

In acting to prevent Mr. Adams from using the boy's bathroom, Nease High School officials claimed to be enforcing St. Johns County School District's unwritten bathroom policy. This alleged policy mandated that a student must use the restroom which corresponds to the "biological sex" recorded on their enrollment documents. Mr. Adams entered the School District in the fourth grade, when he still presented as female. The School District therefore regarded him as a "biological girl" and would not allow him to use the boy's facilities.⁷

Mr. Adams's situation was not altogether unforeseen by the School District. In 2012, the School District began researching "best practices" with regard to issues raised by lesbian, gay, bisexual, transgender, and queer (LGBTQ) students. Relying on these "best practices," the School

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District determined that transgender students were to be given access to gender-neutral restrooms and asserted that it was the School District's belief that no law would require that transgender students be allowed access to the restroom corresponding with their gender identity.⁸

In the course of researching these "best practices," the School District encountered other school districts that permit transgender students to access the restroom conforming with their gender identity. However, the School District refused to adopt such a policy out of the fear it might be abused by an individual claiming to be "gender-fluid." This assertion had no factual grounding, as the School District had never encountered or uncovered any student trying to take advantage of such a policy.⁹

Throughout Mr. Adams's first two years of high school, he and his mother repeatedly protested the School District's bathroom policy but were ultimately unsuccessful. Accordingly, Mr. Adams sued the School District in the United States District Court for the Middle District of Florida in June 2017.¹⁰ He alleged the School District's bathroom policy violated both the Equal Protection Clause of the Fourteenth Amendment¹¹ and Title IX of the Education Amendments Act of 1972 (Title IX)¹² by barring him from the boy's bathroom at school.¹³

Mr. Adams initially asked for injunctive, declarative, and monetary relief, and shortly thereafter moved for a preliminary injunction to prevent the School District from enforcing its bathroom policy. This motion was denied in August 2017, but a bench trial was set for December 2017 on an expediated schedule. After the three-day bench trial, the judge held that Mr. Adams was entitled to declaratory, injunctive, and monetary relief on both claims. The School District appealed to the United States Court of Appeals for the Eleventh Circuit which affirmed the decision of the District Court.¹⁴

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III. Legal Background

A. Title IX of the Education Amendments Act of 1972

Title IX of the Education Amendments Act of 1972 (Title IX) provides that no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . ."¹⁵

A great deal of the development relevant to Title IX has come through decisions involving Title VII of the Civil Rights Act of 1964 (Title VII), a statute that shares many similarities with Title IX. Title VII declares that it is "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."¹⁶ Although Title IX and Title VII are separate statutes, courts have looked to cases interpreting Title VII to aid in evaluating Title IX claims.¹⁷

While initially quite narrow, the meaning of "sex" has broadened significantly in recent years. In Meritor Savings Bank, FSB v. Vinson,¹⁸ the Supreme Court addressed just how broadly Title VII protections were to be construed. Meritor Bank made the argument that the focus of Title VII was on "tangible, economic barriers erected by discrimination."¹⁹ The Supreme Court rejected this argument, instead holding that, "Title VII is not limited to 'economic' or 'tangible' discrimination. The phrase 'terms, conditions, or privileges of employment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women.'"²⁰ This broad interpretation of Title VII laid the foundation for future decisions to expand the protections afforded by the statute.

A decade or so later in Oncale v. Sundowner Offshore Services, Inc.,²¹ the Supreme Court considered whether Title VII's prohibition against discrimination "because . . . of sex" would apply when the

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harasser and the harassed employee are of the same sex.²² Joseph Oncale, who worked for Sundowner Offshore Services on an oil platform, was forcibly subjected to sexual harassment by other male employees.²³ Writing for a unanimous court, Justice Scalia asserted that, "[i]f our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination 'because of . . . sex' merely because the plaintiff and the defendant . . . are of the same sex."²⁴ This opinion, authored by a textualist Justice, demonstrated that the text of Title VII and its kindred statutes could be read to protect other classes of people aside from heterosexual men and women.

The new landmark Title VII decision is Bostock v. Clayton County, where the Supreme Court combined three separate cases wherein an employee was fired soon after their employers found out that they were homosexual or transgender.²⁵ The Court held that "[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."²⁶ In his opinion for the Court, Justice Gorsuch explains this by way of example:

[T]ake an employer who fires a transgender person who identified as male at birth but now identifies as female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.²⁷

The bottom line, as Justice Gorsuch puts it, is that "[f]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII's plain terms — and that should be the end of the analysis."²⁸

The ramifications of the Bostock decision are monumental. Not only because they expanded protections for transgender persons in the workplace...