On December 30, 2022, the Court of Appeals for the Eleventh Circuit issued a decision in Adams v. St. Johns County, Florida, holding that exclusion of transgender students from biological gender non-conforming restrooms does not violate the gender non-discrimination prohibitions of Title IX. This decision parts with the prior rulings of other appellate circuits and creates an obvious circuit-split; positioning this issue as ripe for review by the United States Supreme Court.
The Adams case arose out of St. Johns County, Florida, where a local school board prohibited a transgender male high school student from using the boys' restroom. The student sued the school district, and prevailed at the federal district-level. The school board appealed to the Eleventh Circuit, and the appellate court again found in favor of the student. The school board then successfully petitioned the Eleventh Circuit for a rehearing en banc. In the en banc opinion, the Eleventh Circuit first confirms the legality of separating restrooms by sex, then addresses whether the exclusion of transgender students from gender identity-corresponding restrooms is discriminatory.
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. In doing so, the Eleventh Circuit also eschews executive orders issued by the Biden administration and guidance issued by the U.S. Department of Education expressly providing for application of the Bostock holding to sex discrimination in the educational context of Title IX. Essentially, the Eleventh Circuit concluded that requiring transgender students to use the restrooms of their biological, birth sex does not facially discriminate against transgender students because transgender students come from both male and female populations.
The Eleventh Circuit's en banc Adams ruling is directly at odds with the established precedent of other jurisdictions – notably, the Fourth Circuit's 2020 ruling in Grimm v. Gloucester County School Board, which found a school board discriminated against a transgender student when it denied him use of a gender identity-corresponding restroom. At the time, the Supreme Court declined certiorari over Grimm, leaving the Fourth Circuit's decision intact.
Now with a clear circuit-split, this issue appears destined for inevitable Supreme Court review. As a reminder, Adams is an Eleventh Circuit decision: it is not binding precedent in Ohio. In fact, the Sixth Circuit (having jurisdiction over Ohio) has not yet directly addressed the issue of restroom use by transgender students. While existing Sixth Circuit precedent suggests that school districts should allow transgender students to use the restroom of the gender that they identify with, this is a complex and nuanced legal issue. School districts should consult legal counsel if they have any particular questions or concerns.
PKM attorneys continue to closely monitor this issue, and will continue to provide updates as it develops.