From Bostock to Adams: Following the Expansion of Rights for Transgender Students in Public School Settings

• Jurisdiction: United States,Federal
• Publication year: 2022
• Citation: Vol. 73 No. 3

From Bostock to Adams: Following the Expansion of Rights for Transgender Students in Public School Settings

William A. White

M. Chase Collum

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From Bostock to Adams: Following the Expansion of Rights for Transgender Students in Public School Settings

William A. White^*

M. Chase Collum^**

I. Introduction

Since before the turn of the twenty-first century, it is undeniable that classrooms across the country have undergone a multitude of changes. In 2020, schooling continued through a global pandemic—forcing teachers and students alike to improvise, adapt, and overcome challenges both in the classroom and in their own homes. Now that teachers and students are attempting to return to "normal," federal courts across the country have passed down a number of decisions that will impact students' return to the classroom. Specifically, the Supreme Court of the United States' landmark decision in Bostock v. Clayton County, Georgia,¹ (Bostock) has paved the way for recognition and expansion of civil rights among the LGBTQI+ community.

In light of Bostock, the United States Court of Appeals for the Eleventh Circuit decided Adams by and through Kasper v. School Board of St. Johns County (Adams I).² In Adams I, a transgender student, Drew Adams, challenged the St. Johns County School District's bathroom policy that forbid him from using the boys' restroom and

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instead Adams was provided the opportunity to use the multi-stall girls' restroom or a single-stall gender-neutral bathroom.³ The Eleventh Circuit initially ruled in Adams's favor, on August 7, 2020, concluding that the bathroom policy violated Title IX.⁴ The initial opinion was later vacated by a subsequent opinion, Adams II, issued on July 14, 2021, "[i]n an effort to get broader support among our colleagues[.]"⁵

To further complicate the matter, Adams II was vacated on August 23, 2021, so that the matter could be heard by the Eleventh Circuit en banc.⁶ Consequently, schools are now left with some uncertainty as to how the Eleventh Circuit will ultimately address this issue. This Article will discuss Bostock, Adams, and their progeny and will provide guidance on broaching these issues and other issues that may arise within a school setting.

II. Bostock

Bostock was consolidated from three different cases where employers allegedly fired employees because they were homosexual or transgender.⁷ Each employee then sued their respective employer for sex discrimination under Title VII of the Civil Rights Act of 1964.⁸ The Eleventh Circuit previously held that Title VII did not prohibit employers from firing employees for being gay,⁹ whereas the United States Court of Appeals for the Second and Sixth Circuits both held that Title VII would bar employers from firing employees because of their sexual orientation or transgender status.¹⁰ In rectifying this split, right out the gate, Justice Gorsuch plainly stated the Supreme Court's interpretation of "sex" under Title VII:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have

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questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.¹¹

In reaching this decision, the Supreme Court was tasked with determining whether members of the LGBTQI+ community were encapsulated by Congress's use of the word "sex" under the Civil Rights Act of 1964.¹² In 1964, "sex" referred to "status as either male or female [as] determined by reproductive biology."¹³ But the Court did not just examine the word "sex"; instead, the Court considered the full context of Title VII which forbids discrimination "because of such individual's . . . sex[.]"¹⁴ Title VII's use of "because of creates a traditional but-for causation standard. This means that as "long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law."¹⁵ Discrimination, for the most part, took on the same meaning in 1964 that it does today: an employer who intentionally makes an employment decision because of the employee's sex violates Title VII and practices discrimination.¹⁶ Lastly, the use of the word "individual," as it pertains to discrimination within the statute, "works to protect individuals of both sexes from discrimination, and does so equally."¹⁷

Consequently, based on the foregoing, Justice Gorsuch provided a straightforward rule:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn't matter if other factors besides the plaintiff's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.¹⁸

As momentous of an occasion that this opinion was—with the Supreme Court explicitly stating that an individual's homosexuality or transgender status is not relevant to employment decisions—it still left

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some room for doubt as to whether the same would apply to students within the LGBTQI+ community under Title IX.¹⁹

III. Adams I

One transgender student in a school district in St. Johns County, Florida, Drew Adams, sought to challenge this issue before the Eleventh Circuit when his school tried to dictate which bathroom he was able to use.²⁰ Drew Adams, while being born female, knew "'with every fiber of [his] being' that he is a boy."²¹ Unfortunately, Adams's school forbid him from using the boys' restroom and, instead, provided the option of using the multi-stall girls' restroom or a single-stall gender-neutral bathroom. Adams found these options to be insulting, isolating, depressing, humiliating, and burdensome. After attempting to negotiate with the St. Johns County School District, Adams, by and through his mother, Erica Adams Kasper, brought suit against the St. Johns County School Board. Adams alleged that his rights under Title IX and the Fourteenth Amendment to the United States Constitution had been violated.²²

Upon his entrance into high school in the ninth grade, Adams had already transitioned and presented as a boy.²³ In fact, for his first six weeks as a ninth-grader, Adams used the boys' restroom without incident. However, after two unidentified female students complained, the school informed Adams that he could no longer use the boys' restroom—despite the fact that there were no complaints from male students. This decision was based on the school district's "unwritten bathroom policy":

For "as long as anybody can remember," the School District has maintained a policy that, for restroom use, "boys go to boys' rooms, [and] girls go to girls' rooms." The School District defines "boy" and "girl" based on "biological sex," separating "biological boys" from "biological girls." It administers this policy based on the sex indicated on a student's enrollment documents. Because Mr. Adams enrolled in St. Johns County schools in the fourth grade as "female," the School District's policy considered him a "biological girl" who could not use the boys' restroom, regardless of Mr. Adams's updated legal documents or verified course of medical treatment. Students who fail

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to abide by the School District's bathroom policy can be disciplined for violating the student code of conduct.²⁴

While this particular school district trained its employees to use LGBTQI+ students' preferred names and pronouns and to allow LGBTQI+ students to wear clothing that was in accordance with their gender identity, the bathroom seemed to be a sticking point.²⁵ The school district felt that offering a single-stall restroom appropriately accommodated Adams. According to the school district, its bathroom policy was "because it feared any student might be able to gain access to any bathroom facility by identifying or pretending to identify as 'gender fluid[,]'" despite that the school district has never encountered or even heard of any students pretending to be another gender to seek access to a bathroom facility.²⁶

Conversely, Adams felt "alienated and humiliated" when he was forced to use the gender-neutral bathroom and felt that it was sending a message that he was different, leading to Adams's lawsuit and a bench trial in December 2017.²⁷ The United States District Court for the Middle District of Florida granted Adams relief on both his Title IX and Equal Protection claims.²⁸ The Eleventh Circuit reviewed the district court's decision de novo.²⁹

A. Adams's Fourteenth Amendment Claims

Both Adams and the school district agreed that the school's bathroom policy required a heightened standard of review as "[a] gender classification fails unless it is substantially related to a sufficiently important governmental interest."³⁰ While the school district argued that its policy broadly discriminates on the basis of sex (biological females using the girls' restroom and biological males using the boys' restroom), Adams characterized his argument as discrimination specifically against him because he was transgender and defied gender norms. By forcing him to choose between an isolated single-stall restroom and a restroom that does not match his gender identity, he argued that the school was effectively excluding him from all communal

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restrooms.³¹ The Eleventh Circuit agreed with Adams, concluding that the school district's policy "places a special burden on transgender students because their gender identity does not match their sex assigned at birth."³²

However, the inquiry did not end there. The Eleventh Circuit next had to decide whether there was a sufficient...