Title IX rules against gender-based discrimination do not include “gender identity,” according to the 11th Circuit Court of Appeals sitting en banc ruled on Dec. 30, 2022.
In Adams v. School Board of St. Johns County, Florida, the court ruled 7-4 against a statutory and constitutional challenge of a transgender student to a district policy requiring students to use bathrooms corresponding to their biological sex.
In a 50-page majority opinion, Judge Barbara Lagoa wrote that the school board policy “advances the important governmental objective of protecting students’ privacy in school bathrooms.”
Lagoa wrote that the board has a clear interest in protecting the privacy of students.
“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.”
The court also held that Title IX allows schools to provide separate bathrooms on the basis of biological sex.
“That is exactly what the School Board has done in this case; it has provided separate bathrooms for each of the biological sexes. And to accommodate transgender students, the School Board has provided single-stall, sex-neutral bathrooms, which Title IX neither requires nor prohibits. Nothing about this bathroom policy violates Title IX. Moreover, under the Spending Clause’s clear-statement rule, the term ‘sex,’ as used within Title IX, must unambiguously mean something other than biological sex — which it does not — in order to conclude that the School Board violated Title IX. The district court’s contrary conclusion is not supported by the plain and ordinary meaning of the word ‘sex’ and provides ample support for subsequent litigants to transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities. Whether Title IX should be amended to equate ‘gender identity’ and ‘transgender status’ with ‘sex’ should be left to Congress — not the courts.”
Ruling conflicts with Fourth Circuit
The decision conflicts with the Fourth Circuit’s decision in G.G. v. Gloucester County, which found a school board discriminated against a transgender student by requiring the use of restrooms corresponding with biological sex. That case was appealed to the United States Supreme Court, which declined to hear it.
Some sources have suggested the Adams ruling conflicts with the 2020 SCOTUS decision in Bostock v. Clayton County.
Daniel R. Shisler, on the site Ohio Ed Law, wrote: “In conducting its analysis of the discrimination issue, the Eleventh Circuit expressly declines to follow the Supreme Court’s 2020 Bostock v. Clayton County decision, which ultimately held that discrimination on the basis of gender identity or sexual identity is prohibited discrimination on the basis of sex in the employment context.”
However, in Bostock, the Court expressly stated it was not ruling on the issues later raised in Adams.
As Kansas is the 10th Circuit, neither ruling automatically impacts Kansas schools until a state or federal district court references one of the rulings in a case or takes it up directly. The conflicting opinions also increase the odds that the U.S. Supreme Court could take up the issue.
Title IX ruling affects women’s sports
In 2022, Kansas Governor Laura Kelly vetoed the “Fairness in Women’s Sports Act,” which would have prevented biological males from competing in women’s sports.
In a separate concurrence to the majority opinion, Lagoa said extending Title IX protections to biological males would destroy women’s sports.
“Affirming the district court’s order and adopting Adams’s definition of ‘sex’ under Title IX to include ‘gender identity’ or ‘transgender status’ would have had repercussions far beyond the bathroom door,” Lagoa wrote. “There simply is no limiting principle to cabin (restrict) that definition of ‘sex’ to the regulatory carve-out for bathrooms under Title IX, as opposed to the regulatory carve-out for sports or, for that matter, to the statutory and regulatory carve-outs for living facilities, showers, and locker rooms. And a definition of ‘sex’ beyond ‘biological sex’ would not only cut against the vast weight of drafting-era dictionary definitions and the Spending Clause’s clear-statement rule but would also force female student-athletes ‘to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female.’
“Such a proposition — i.e., commingling both biological sexes in the realm of female athletics — would ‘threaten to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.'”
A comparison between 2016 male finalists for the New Balance Nationals Outdoor Championship — an elite track and field tournament for the best Jr. high and high school competitors in the country — and the 2016 women’s Olympic track and field finalists found that, in many cases, the women’s gold medalists would not have even qualified to enter the boys’ competition.
