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The Eleventh Circuit Court of Appeals, sitting en banc, has determined that a school board’s policy requiring students to use the bathroom corresponding to their biological sex comports with both the U.S. Constitution and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. The decision is Drew Adams v. School Board of St. John’s County, Florida, No. 18-13592 (December 30, 2022.)
Drew Adams, a transgender male high school student who had formally changed his gender on his birth certificate and was undergoing hormone therapy, argued that he should be permitted to use the male bathroom at his high school, rather than a specially-created all-gender bathroom or the female bathroom. The Court found that the policy requiring biological males and biological females to use the bathroom designated for that gender was permissible in part because the district had an obligation to protect the privacy, welfare, and safety of its students and could bear civil liability for harm to its student population.
This decision departs from the practice of the other federal courts, which puts Georgia, Florida, and Alabama on a different footing from states in the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia), where two years ago, nearly identical facts yielded a different outcome in the matter of Grimm v. Gloucester County Sch. Bd., 972 F.3d 586, 608 (4th Cir. 2020). In those states, as well as California, Oregon, Alaska, Idaho, Washington, and Hawaii, and others, schools cannot require a transgender student to use the bathroom of his or her biological sex—or even an “all-gender” bathroom—and must instead permit the student to use the bathroom of their expressed gender identity.
Will the Supreme Court take this matter up to resolve the differences among the circuits? It would seem to be only a matter of time. Until then, however, the decision underscores the wisdom of consulting with counsel on policy decisions that may affect a segment of the student population to ensure that the most up-to-date guidance is being followed.