Transgender Students’ Rights to the Restroom: Exploring the Eleventh Circuit’s Divide in Adams v. School Board of St. Johns County

by Sarah Jana, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

When freshman Drew Adams was called to the school office, it was not for the kind of infraction you might think.¹ Drew had not missed any assignments. He had not been tardy. Instead, Drew was told he had violated an unwritten rule: he had used the boys’ restroom.²

Drew is transgender, meaning he “consistently, persistently, and insistently” identifies as a gender different than the sex he was assigned at birth.³ In other words, although Drew is male—complete with a deep voice, facial hair, and a flat chest—he was born female.

But because the birth certificate that Drew had presented to the school district when he enrolled listed his sex as “female,”⁴ he could only use the girls’ restroom or the gender-neutral restroom located in a different area of the school.⁵ Eventually, Drew brought suit in federal court, arguing the school restroom policy violated the Fourteenth Amendment.⁶

Drew’s case made it to the Eleventh Circuit, which authored three separate opinions, each showing that judges’ views on transgender rights, definitions, and privacy differed greatly. The Supreme Court itself has hinted that it may take up these issues in the future,⁷ making it clear that transgender rights are still being defined in the law. This article will outline the main points of contention between the judges in Adams. Section II will describe the case’s procedural history. Section III will explain the key legal issues at play and argue that transgender students should be permitted to use the restroom aligning with their gender identity.

II. Background

The procedural history of Adams is long and complex. After a three-day bench trial at the district court—including a visit to the school restrooms by the judge himself—the court held that the restroom policy violated the Fourteenth Amendment’s Equal Protection Clause.⁸ The school district appealed to the Eleventh Circuit.⁹

In 2020, a three-judge panel first ruled on the case.¹⁰ A divided court affirmed, finding the restroom policy was unconstitutional for three reasons: (1) it was administered arbitrarily; (2) the only privacy concerns presented were “hypothesized”; and (3) it subjected Drew to unfavorable treatment because he did not conform with gender stereotypes.¹¹ Chief Judge William Pryor¹² dissented, finding the policy properly addressed privacy concerns and did not discriminate against transgender students.¹³ But on the same day the 2020 decision was issued, an active member of the court withheld issuance of the mandate, thereby halting the judgment.¹⁴

In 2021, “in an effort to get broader support among [their] colleagues,” the same three-judge panel withdrew their previous opinion and entered another.¹⁵ A divided court again found for Drew, but narrowed its holding. Of the three reasons for unconstitutionality previously given, only arbitrary administration was included. Chief Judge William Pryor again dissented.¹⁶ But still, the court was not satisfied. The Eleventh Circuit granted the school’s petition for rehearing en banc and the case was presented to the full court.¹⁷

In December 2022, the court issued its final decision, vacating the judgment for Drew.¹⁸ A seven-member majority—including Chief Judge William Pryor, the dissenter in the previous opinions—held that the bathroom policy was not unconstitutional because it protected privacy interests and did not discriminate against transgender students.¹⁹ Four judges—including two who were in the majority in the 2020 and 2021 opinions—each entered separate dissents.²⁰ To better understand the issues that divided the court, the next section will outline the key points of disagreement in its final decision and will argue that transgender students should be permitted to use the restroom aligning with their gender identity.

III. Discussion

Division in the Eleventh Circuit’s Adams opinion largely centered on three issues. First, the court could not come to an agreement on how to define “sex.” The majority of the court looked to dictionary definitions that were in effect when Title IX was enacted and determined that sex should be based solely on biology and reproductive function.²¹ Judge Wilson pointed out in dissent, however, that for some—particularly the intersex community—sex changes over time and an inflexible definition is impractical.²² Judge Jill Pryor highlighted in her dissent that the medical definition of “sex” has developed to recognize that sex is made up of a variety of components, including chromosomal sex, genitalia, and gender identity and role.²³

How the law chooses to define “sex” moving forward will undoubtedly have serious consequences. On the one hand, Judge Lagoa outlined in her concurrence the potential negative ramifications that an expansive definition of sex could have on women’s sports.²⁴ On the other hand, a narrow definition of sex ignores its complexities and makes gender identity—which science has now recognized has a biological component—irrelevant.²⁵

When the Supreme Court inevitably addresses these issues and takes on the difficult task of defining exactly what “sex” means in the legal world, it should use an expansive definition that accounts for the complexities of sex.²⁶ Sex is more than just the genitalia that an individual is born with.²⁷ It also includes chromosomes, hormones, reproductive organs, gender identity, and other factors—all of which are influenced by time and environments.²⁸ A person who is intersex, for example, may be assigned one sex at birth but develop different reproductive anatomy later in life.²⁹ Simply put, our scientific, medical, and social understandings of sex have changed over time—and our legal definition should too.³⁰

Second, the Eleventh Circuit disagreed on how to approach privacy concerns. In the majority view, specific evidence of privacy concerns is not necessary because courts have always recognized that individuals have an interest in “shielding one’s body from the opposite sex.”³¹ But as Judge Jill Pryor noted in dissent, Drew had been using the boys’ restroom for weeks before he was told to stop and there had not been a single complaint.³² And an expert at trial even testified that she had not “heard of a case anywhere” in the district where a transgender student using the restroom aligning with gender identity created a privacy issue.³³ Thus, whether parties will need to present specific evidence of privacy concerns or violations is unclear.

Judges in dissent also claimed that even if evidence of privacy concerns was not necessary, the bathroom policy did not adequately address those concerns to begin with.³⁴ In fact, forcing Drew to use the girls’ bathroom because it aligned with his biological sex may actually create privacy issues.³⁵ After all, Drew had facial hair, a short haircut, and male muscle growth.³⁶ As Justice Jill Pryor pointed out in her dissent, “Any occupants of the girls’ restroom would have seen a boy entering the restroom when Adams walked in”— creating the very privacy violation the policy sought to avoid.³⁷

When it comes to privacy concerns, the Adams dissenters have the better arguments. It is well-established that to be able to sue at all, a plaintiff must have standing, which includes establishing “injury in fact.”³⁸ Injuries in fact must be based on “an invasion of a legally protected interest that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”³⁹ The belief that transgender students using a particular restroom “could” create privacy or safety concerns or make other students uncomfortable is not enough.⁴⁰ Additionally, as Justice Jill Pryor’s dissent aptly explains, forcing transgender students to use restrooms aligning with the sex assigned at birth could actually create serious safety or privacy concerns.⁴¹ A school district official at the Adams trial even admitted that it would be “more comfortable and safe” if transgender girls—meaning students who had been born male but identified as female—did not follow the restroom policy.⁴² Because those students would likely look like girls, including breasts and feminine clothing, the officials noted that their use of the boys’ restroom could actually generate privacy and safety concerns.⁴³

Finally, the court was fractured over whether allowing transgender students to use sex-neutral restrooms is an accommodation or a burden. The majority took the former view, declaring that the sex-neutral restrooms were a viable “alternative” for transgender students who did not want to use the restroom aligning with their birth-assigned sex.⁴⁴ In her dissent, Judge Jill Pryor said the opposite. She compared Drew’s use of the sex-neutral restrooms to racial segregation, noting Drew was forced to undergo a “humiliating public walk of shame in front of his peers” that marked him with a “badge of inferiority.”⁴⁵ Regardless of the sex-neutral option, she said, the result of the policy “is to deeply and indelibly scar the most vulnerable among us—children who simply wish to be treated as equals at one of the most fraught developmental moments in their lives—by labeling them as unfit for equal protection in our society.”⁴⁶

Again, the dissent has the better argument here. Forcing transgender students to use restrooms that do not align with their gender identity can be distressing and humiliating.⁴⁷ And where there are specified concerns or issues brought up by other students, it may even be unnecessary.⁴⁸ While it may become more common in the future for all students to use gender-neutral restrooms,⁴⁹ forcing transgender students to walk to a separate restroom in front of their peers sends the signal that those students are different or abnormal.⁵⁰

IV. Conclusion

Overall, whether a transgender student could use a restroom aligning with his gender identity produced a fractured court.⁵¹ Judges disagreed on critical issues, including how to define “sex,” privacy, and gender-neutral restrooms.⁵² It is unclear whether Drew will petition for a writ of certiorari, but regardless, it seems likely that the Supreme Court will take up these issues eventually.⁵³ When it does, it must account for the complexities that exist in concepts of sex and gender and should require that plaintiffs establish concrete and particularized concerns, not just mere hypotheticals or speculative issues, to sue.⁵⁴ The way the Court chooses to address these issues will affect the legal rights of transgender students for decades to come.

Cover Photo by Juan Marin on Unsplash

Sarah Jana

Sarah Jana is a 3L at the University of Cincinnati College of Law. Prior to law school, Sarah received her undergraduate degree in Public Affairs from The Ohio State University and a master's degree in Elementary Education from Lesley University. Sarah writes primarily on topics involving education and civil rights law and hopes to work in the public interest field in the future.

References

1
Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 840 (11th Cir. 2022).
2
Id.
3
Id. at 824.
4
Drew enrolled with the school district in fourth grade, before his gender transition. By the time he started high school, he had gone through Florida’s procedures to update his legal documents—including his birth certificate—to show his gender as “male.” But when he tried to present these updated documents to the high school, they refused to accept them. Id. at 840.
5
Id. at 836.
6
Id. at 840. Drew also argued that the bathroom policy violated Title IX. But for the sake of brevity, this article will only discuss his claims under the Fourteenth Amendment.
7
See Adam Liptak, Bathroom Bans for Transgender Youths Are Poised for Supreme Court Review, N.Y. Times (Jan. 23, 2023), https://www.nytimes.com/2023/01/23/us/politics/supreme-court-transgender-students-bathrooms.html.
8
Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1298, 1327 (11th Cir. 2021). The court also found that the policy violated Title IX, but, for the sake of brevity, this article will only discuss the Fourteenth Amendment claim.
9
Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1295 (11th Cir. 2020).
10
Id. at 1290.
11
Id. at 1297.
12
To add to the complexity of the case, there are two Judge Pryors on the Eleventh Circuit. For clarity, this article will include their first names as well.
13
Id. at 1311-19.
14
Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1303 (11th Cir. 2021).
15
Id. at 1304.
16
Id. at 1321.
17
Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty, 57 F. 4th 791, 795, 798-99 (11th Cir. 2022).
18
Id. at 796.
19
Id. at 800-11.
20
Id. at 821-60.
21
Id. at 812-13.
22
Id. at 822-23.
23
Id. at 836.
24
Id. at 818-21.
25
Id. at 842 (Pryor, J., dissenting).
26
See Jessica A. Clarke, Sex Assigned at Birth, 122 Colum. L. Rev. 1821, 1824 (Nov. 2022) (explaining that federal courts “fail to critically consider the differences between sex assigned at birth and ‘biological sex’ or even conflate the two concepts”).
27
Id. at 1853-54.
28
Id. at 1854.
29
See What Is Intersex?, InterACT, https://interactadvocates.org/faq/#definition [https://perma.cc/7WJY-VJBZ].
30
See Clarke, supra note 26, at 1832-44 (tracing changes in medical and legal definitions and understandings of “sex” over time).
31
Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty, 57 F. 4th 791, 805 (11th Cir. 2022) (describing sex-segregated restrooms as a privacy protection that is “widely recognized throughout American history and jurisprudence”).
32
Id. at 837-40.
33
Id.
34
Id.
35
Id. at 852 (Pryor, J., dissenting).
36
Id.
37
Id.
38
See Spokeo, Inc. v. Robins, 578 U.S. 330, 338-39 (2016).
39
Id. at 339 (quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992)).
40
See Adams, 57 F.4th at 851-55 (Pryor, J., dissenting) (explaining that the school was unable to articulate any specific privacy or safety concerns).
41
Id.
42
Id. at 854.
43
Id.
44
Id. at 810-11 (“The School Board did not place a special burden on transgender students by allowing them to use sex-neutral bathrooms . . . rather, the School Board gave transgender students an alternative option in the form of an accommodation.”).
45
Id. at 860.
46
Id. (quoting Grimm v. Gloucester Cnty. Sch. Bd., 976 F.3d 586, 620-21 (4th Cir. 2020)).
47
See, e.g., Adams ex rel. Kasper v. Sch. Bd. of St. John’s County, 968 F.3d 1286, 1291 (11th Cir. 2020) (Drew describing the experience of walking to the gender-neutral restroom as “isolating,” “depressing,” “humiliating,” and burdensome).
48
See Adams, 57 F.4th at 851-55 (Pryor, J., dissenting) (explaining that the school was unable to articulate any specific privacy or safety concerns).
49
See Jennifer S. Hendricks, Arguing with the Building Inspector About Gender-Neutral Bathrooms, 113 NW U.L. Rev. Online 77, 81-85 (Dec. 2018) (describing designs and benefits of “gender-neutral bathrooms of the future”).
50
See G.C. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 833 F.3d 709, 741 (4th Cir. 2016), vacated S. Ct. 1239 (2017) (transgender student explaining that using gender-neutral restroom made her feel isolated and stigmatized).
51
See discussion supra Parts II and III.
52
See discussion supra Part III.
53
See Liptak, supra note 7.
54
See discussion supra Part III.

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References