United States Court of Appeals
For the Eleventh Circuit
a minor, by and through his next friend and mother, Erica Adams Kasper,
SCHOOL BOARD OF ST. JOHNS COUNTY, FLORIDA,
TIM FORSON, et al.,
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:17-cv-00739-TJC-JBT
Before William Pryor, Chief Judge, Wilson, Jordan, Rosenbaum, Jill Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher, Circuit Judges.
Lagoa, Circuit Judge, delivered the opinion of the Court, in which William Pryor, Chief Judge, Newsom, Branch, Grant, Luck, and Brasher, joined.
Lagoa, Circuit Judge, filed a concurring opinion.
Wilson, Circuit Judge, filed a dissenting opinion.
Jordan, Circuit Judge, filed a dissenting opinion, in which Wilson and Rosenbaum, Circuit Judges, joined.
Rosenbaum, Circuit Judge, filed a dissenting opinion.
Jill Pryor, Circuit Judge, filed a dissenting opinion, in which Rosenbaum, Circuit Judge, joined as to Parts I, II, III.A, III.B., III.D., and IV.
Lagoa, Circuit Judge:
This case involves the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex. This appeal requires us to determine whether separating the use of male and female bathrooms in the public schools based on a student’s biological sex violates (1) the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and (2) Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. We hold that it does not—separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-Appellant, the School Board of St. Johns County (the “School Board”), is responsible for providing “proper attention to health, safety, and other matters relating to the welfare of students” within the St. Johns County School District (the “School District”). Fla. Stat. § 1001.42(8)(a). The School Board maintains and oversees the K-12 policies for the 40,000 students who attend the thirty-six different schools within the School District. See generally id. § 1001.42. Of the 40,000 students attending schools within the School District, around sixteen identify as transgender.
Plaintiff-Appellee, Drew Adams, is a transgender boy. This means that Adams identifies as male, while Adams’s biological sex—sex based on chromosomal structure and anatomy at birth—is female. Adams entered the School District in the fourth grade as a biological female and identified as a female. At the end of eighth grade, however, Adams began identifying and living as a boy. For example, Adams dressed in boys’ clothing and wore a “chest binder” to flatten breast tissue. Most pertinently for this appeal, Adams adopted the male pronouns “he” and “him” and began using the male bathroom in public.
In August 2015, Adams entered ninth grade at Allen D. Nease High School (“Nease”) within the School District. Nease provides female, male, and sex-neutral bathrooms for its 2,450 students. The communal female bathrooms have stalls, and the communal male bathrooms have stalls and undivided urinals. In addition to performing bodily functions in the communal bathrooms, students engage in other activities, like changing their clothes, in those spaces. Single-stall, sex-neutral bathrooms are provided to accommodate any student, including the approximately five transgender students at Nease, who prefer not to use the bathrooms that correspond with their biological sex. The bathrooms at Nease are ordinarily unsupervised.
The School Board, like many others, maintains a longstanding, unwritten bathroom policy under which male students must use the male bathroom and female students must use the female bathroom. For purposes of this policy, the School Board distinguishes between boys and girls on the basis of biological sex—which the School Board determines by reference to various documents, including birth certificates, that students submit when they first enroll in the School District. The School Board does not accept updates to students’ enrollment documents to conform with their gender identities.
According to the School Board, the bathroom policy addresses concerns about the privacy, safety, and welfare of students pursuant to the School Board’s duties under the governing Florida statute. In line with these concerns, the parties specified the following in their joint pretrial statement:
The parties stipulate that certain parents of students and students in the St. Johns County School District object to a policy or practice that would allow students to use a bathroom that matches their gender identity as opposed to their sex assigned at birth. These individuals believe that such a practice would violate the bodily privacy rights of students and raise privacy, safety and welfare concerns.
In 2012, School District personnel began a comprehensive review of LGBTQ issues affecting students. Indeed, the then-Director of Student Services for the School District attended, and sent personnel to, national LGBTQ conferences to help inform the School District about issues affecting the LGBTQ student community. The Director conducted significant research on LGBTQ student issues, met with LGBTQ student groups at schools throughout the School District, and contacted school administrators outside the School District, as well as a local LGBTQ organization, to “gather every bit of information” to “support [LGBTQ] children.” The Director also convened an LGBTQ task force, which met with “district administrators, … principals, … attorneys, … guidance counselors, [and] mental health therapists” to hear “every perspective” on emerging LGBTQ issues.
The School District’s review of LGBTQ student issues culminated in 2015 with the announcement of a set of “Guidelines for LGBTQ students – Follow Best Practices” (the “Best Practices Guidelines”). Under the Best Practices Guidelines, School District personnel, upon request, address students consistent with their gender identity pronouns. The guidelines also allow transgender students to dress in accordance with their gender identities and publicly express their gender identities. Finally, the guidelines formally note that: “Transgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.”
The School Board’s decision to maintain the longstanding bathroom policy separating bathrooms based on biological sex, while providing sex-neutral bathroom accommodations for transgender students under the Best Practices Guidelines, was motivated, in part, by the issue of gender fluidity in which students may switch between genders with which they identify. Both the Best Practices Guidelines and the bathroom policy apply to all schools with communal bathrooms in the School District, not only to high schools like Nease.
Because Adams is biologically female and first enrolled in the School District as a female, Adams is identified as a female for purposes of the bathroom policy. For the first few weeks of ninth grade, Adams used the male bathrooms (in violation of the bathroom policy) without incident. However, at some point during this period, two unidentified students observed Adams using a male bathroom and complained to school officials. The school then informed Adams that, under the bathroom policy, Adams had to use either the communal female bathrooms or the single-stall, sex-neutral bathrooms. Adams took issue with that directive and, with parental help, began petitioning the school to change its policy.
Adams continued the process of identifying as a male, including amending government documents with the State of Florida. For example, shortly before receiving a driver’s license in the fall of 2016, Adams submitted medical documents to the Florida Department of Motor Vehicles to receive a male designation on the license. And, in 2017, while this litigation was pending, Adams obtained an amended birth certificate with a male designation.
Adams also began taking birth control to stop menstruation and testosterone to appear more masculine and underwent a “double-incision mastectomy” to remove breast tissue. Because Adams was still just a teenager who had not yet reached the age of maturity, Adams could not undergo additional surgeries to rework external genitalia. Thus, at all times relevant to this lawsuit, Adams possessed the reproductive anatomy Adams was born with—that of a female.
On June 28, 2017, after Adams’s efforts to change the School Board’s bathroom policy failed, Adams filed suit against the School Board under 42 U.S.C. § 1983, alleging that its bathroom policy violated both the Equal Protection Clause and Title IX. After a three-day bench trial, the district court ruled in Adams’s favor on both counts. The district court enjoined the School Board from prohibiting Adams’s use of the male bathrooms and granted Adams $1,000 in compensatory damages.
The School Board timely appealed the district court’s order. Following oral argument, a divided panel of this Court affirmed the district court over a dissent. Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292 (11th Cir. 2020); id. at 1311 (Pryor, C.J., dissenting). After a member of this Court withheld the mandate, the panel majority sua sponte withdrew its initial opinion and issued a revised opinion, again affirming the district court over a revised dissent but on grounds that were neither substantively discussed in the initial panel opinion nor substantively made by any party before the district court or this Court. Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1303–04 (11th Cir. 2021); id. at 1321 (Pryor, C.J., dissenting). We then granted the School Board’s petition for rehearing en banc and vacated the panel’s revised opinion. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 9 F.4th 1369, 1372 (11th Cir. 2021).
Pursuant to our en banc briefing notice to the parties, on appeal the only questions before this Court are:
1) Does the School District’s policy of assigning bathrooms based on sex violate the Equal Protection Clause of the Constitution? and
2) Does the School District’s policy of assigning bathrooms based on sex violate Title IX?
II. STANDARD OF REVIEW
“After a bench trial, we review the district court’s conclusions of law de novo and the district court’s factual findings for clear error.” Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). A factual finding is clearly erroneous when the reviewing court “is left with the definite and firm conviction that a mistake has been committed.” Morrissette–Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) (quoting Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005)).
On appeal, Adams argues that the School Board’s bathroom policy violates both the Equal Protection Clause and Title IX. At its core, Adams’s claim is relatively straightforward. According to Adams, the School Board’s bathroom policy facially discriminates between males and females. Adams, who identifies as a male, argues that the policy violates Adams’s rights because, as a transgender student, Adams cannot use the bathroom that corresponds to the sex with which Adams identifies. Which is to say, Adams argues that by facially discriminating between the two sexes, the School Board’s bathroom policy also necessarily discriminates against transgender students. We disagree with Adams’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students.
Indeed, when we apply first principles of constitutional and statutory interpretation, this appeal largely resolves itself. The Equal Protection Clause claim must fail because, as to the sex discrimination claim, the bathroom policy clears the hurdle of intermediate scrutiny and because the bathroom policy does not discriminate against transgender students. The Title IX claim must fail because Title IX allows schools to separate bathrooms by biological sex. We now begin our full analysis with the Equal Protection Clause and end with Title IX.
A. The Bathroom Policy Does Not Violate the Equal Protection Clause
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985), and “simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike,” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
There has been a long tradition in this country of separating sexes in some, but not all, circumstances—and public bathrooms are likely the most frequently encountered example. Indeed, the universality of that practice is precisely what made Justice Thurgood Marshall’s statement—“[a] sign that says ‘men only’ looks very different on a bathroom door than a courthouse door”—so pithy. City of Cleburne, 473 U.S. at 468–69 (Marshall, J., concurring in the judgment in part and dissenting in part). Of course, not all sex-based classifications, no matter how longstanding, satisfy the mandate of the Equal Protection Clause. And it is well settled that when it comes to sex-based classifications, a policy will pass constitutional muster only if it satisfies intermediate scrutiny. See United States v. Virginia, 518 U.S. 515, 533 (1996). To satisfy intermediate scrutiny, the government must show “that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980)).
For a governmental objective to be important, it cannot “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U.S. at 533. For a policy to be substantially related to an important governmental objective, there must be “enough of a fit between the … [policy] and its asserted justification.” Danskine v. Mia. Dade Fire Dep’t, 253 F.3d 1288, 1299 (11th Cir. 2001). But the Equal Protection Clause does not demand a perfect fit between means and ends when it comes to sex. See Nguyen v. INS, 533 U.S. 53, 70 (2001) (“None of our gender-based classification equal protection cases have required that the [policy] under consideration must be capable of achieving its ultimate objective in every instance.”); see also Eng’g Contractors Ass’n of S. Fla. Inc. v. Metro Dade County, 122 F.3d 895, 929 (11th Cir. 1997) (“[U]nder intermediate scrutiny, a gender-conscious program need not closely tie its numerical goals to the proportion of qualified women in the market.”).
In the instant appeal, Adams argues that the bathroom policy unlawfully discriminates on both the basis of sex and transgender status. We address both of Adams’s arguments in turn and hold that there has been no unlawful discrimination.
1. The Bathroom Policy Does Not Unlawfully Discriminate on the Basis of Sex
The School Board’s bathroom policy requires “biological boys” and “biological girls”—in reference to their sex determined at birth—to use either bathrooms that correspond to their biological sex or sex-neutral bathrooms. This is a sex-based classification. Adams challenges the policy’s requirement that Adams must either use the female bathrooms—which correspond with Adams’s biological sex—or the sex-neutral bathrooms. Simply put, Adams seeks access to the male bathrooms, which correspond with the gender Adams identifies with.
Before reaching the merits of Adams’s argument and the constitutional question presented in this case, we begin with one prefatory note: the role that schools have in setting policies for students. As the Supreme Court has recognized, constitutional rights, including “Fourteenth Amendment rights, are different in public schools than elsewhere” because of “the schools’ custodial and tutelary responsibility for children.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995). Schools operate in loco parentis to students and are “permit[ed] a degree of supervision and control that could not be exercised over free adults.” Id. at 655. This is because, “in a public school environment[,] … the State is responsible for maintaining discipline, health, and safety.” Bd. of Educ. v. Earls, 536 U.S. 822, 830 (2002).
Indeed, schools’ responsibilities are so great that they can be held liable for their failures to protect students from sexual assault and harassment. See, e.g., Miami-Dade Cnty. Sch. Bd. v. A.N., 905 So. 2d 203, 204–05 (Fla. Dist. Ct. App. 2005) (upholding a jury verdict that found a school to be negligent and thus liable for failure to protect a student from sexual assault by another student in the bathroom); see also Williams v. Bd. of Regents, 477 F.3d 1282, 1288–91 (11th Cir. 2007) (reversing a district court’s dismissal of a Title IX claim against the University of Georgia alleging gang rape by a group of athletes in a university dormitory). Given schools’ responsibilities, the Supreme Court has afforded deference to their decisions even when examining certain constitutional issues. See, e.g., Acton, 515 U.S. at 665 (Fourth Amendment); Morse v. Frederick, 551 U.S. 393, 403–08 (2007) (First Amendment); Ingraham v. Wright, 430 U.S. 651, 671 (1977) (Eighth Amendment).
None of that, of course, is to say that schools have carte blanche. It is to say, though, that when school authorities have prudently assessed and addressed an issue that affects student welfare, we should pay attention. Just so here. In this case, the School Board has gone to great lengths—as the district court itself acknowledged—to accommodate LGBTQ students:
Beginning in 2012, the (now retired) Director of Student Services worked with LGBTQ students, attended and sent staff to LGBTQ conferences, and researched school policies in other school districts in Florida and elsewhere to educate herself and the School District about emerging LGBTQ issues. She formed a task force which consulted with district administrators, principals, attorneys, guidance counselors, mental health professionals, parents, students, members of the public, and LGBTQ groups in St. Johns County and elsewhere. The result was a set of Best Practices Guidelines adopted by the School Superintendent’s Executive Cabinet and introduced to school administrators in September 2015. …Under the Best Practices Guidelines, upon request by a student or parent, students should be addressed with the name and gender pronouns corresponding with the student’s consistently asserted gender identity; school records will be updated upon receipt of a court order to reflect a transgender student’s name and gender; unofficial school records will use a transgender student’s chosen name even without a court order; transgender students are allowed to dress in accordance with their gender identity; students are permitted to publicly express their gender identity; and the school will not unnecessarily disclose a student’s transgender status to others. The Best Practices Guidelines also provide that “[t]ransgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.”
(second alteration in original) (citations omitted).
Thus, after completing this process and as part of its Best Practices Guidelines, the School Board decided to maintain its bathroom policy that separates bathrooms on the basis of biological sex while providing accommodative sex-neutral bathrooms. The School Board opted to maintain this policy also after taking into account the complex issues presented by the notion of gender fluidity.
Ultimately, the School Board believes its bathroom policy is necessary to ensure the privacy and overall welfare of its entire student body under the governing Florida statute. We will not insert ourselves into the School Board’s ongoing development of policies to accommodate students struggling with gender identity issues—unless, of course, the School Board’s policies are unconstitutional, an issue which we now address.
Turning to the constitutional question, because the policy that Adams challenges classifies on the basis of biological sex, it is subject to intermediate scrutiny. To satisfy intermediate scrutiny, the bathroom policy must (1) advance an important governmental objective and (2) be substantially related to that objective. Miss. Univ. for Women, 458 U.S. at 724. The bathroom policy clears both hurdles because the policy advances the important governmental objective of protecting students’ privacy in school bathrooms and does so in a manner substantially related to that objective.
The protection of students’ privacy interests in using the bathroom away from the opposite sex and in shielding their bodies from the opposite sex is obviously an important governmental objective. Indeed, the district court “agree[d] that the School Board has a legitimate interest in protecting student privacy, which extends to bathrooms.” Understanding why is not difficult—school-age children “are still developing, both emotionally and physically.” See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 636 (4th Cir. 2020) (Niemeyer, J., dissenting) (“[A]ll individuals possess a privacy interest when using restrooms or other spaces in which they remove clothes and engage in personal hygiene, and this privacy interest is heightened when persons of the opposite sex are present. Indeed, this privacy interest is heightened yet further when children use communal restrooms … .”). And even the more generally acceptable notion that the protection of individual privacy will occasionally require some segregation between the sexes is beyond doubt—as then-Professor Ruth Bader Ginsburg noted, “[s]eparate places to disrobe, sleep, [and] perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” Ruth Bader Ginsburg, The Fear of the Equal Rights Amendment, Wash. Post, Apr. 7, 1975, at A21 (emphasis added).
It is no surprise, then, that the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence. In fact, “sex-separation in bathrooms dates back to ancient times, and, in the United States, preceded the nation’s founding.” W. Burlette Carter, Sexism in the “Bathroom Debates”: How Bathrooms Really Became Separated by Sex, 37 Yale L. & Pol’y Rev. 227, 229 (2019). The Supreme Court acknowledged this when it stated that admitting women to the Virginia Military Institute for the first time “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” Virginia, 518 U.S. at 550 n.19. So, too, have our sister circuits. See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010) (“[T]he law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs.”); Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (“[Society has given its] undisputed approval of separate public rest rooms for men and women based on privacy concerns. The need for privacy justifies separation and the differences between the genders demand a facility for each gender that is different.”); see also Grimm, 972 F.3d at 634 (Niemeyer, J., dissenting) (“In light of the privacy interests that arise from the physical differences between the sexes, it has been commonplace and universally accepted—across societies and throughout history—to separate on the basis of sex those public restrooms, locker rooms, and shower facilities that are designed to be used by multiple people at a time.”).
Moreover, courts have long found a privacy interest in shielding one’s body from the opposite sex in a variety of legal contexts. E.g., Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (recognizing a “constitutional right to bodily privacy because most people have ‘a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating’” (quoting Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981))); Harris v. Miller, 818 F.3d 49, 59 (2d Cir. 2016); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494–95 (6th Cir. 2008); Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994); Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc).
Having established that the School Board has an important governmental objective in protecting students’ privacy interests in school bathrooms, we must turn to whether the bathroom policy is substantially related to that objective. Miss. Univ. for Women, 458 U.S. at 724. Intermediate scrutiny is satisfied when a policy “has a close and substantial bearing on” the governmental objective in question. Nguyen, 533 U.S. at 70. 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. Therefore, the School Board’s bathroom policy satisfies intermediate scrutiny.
The district court avoided this conclusion only by misconstruing the privacy interests at issue and the bathroom policy employed. The district court found that “allowing transgender students to use the restrooms that match their gender identity does not affect the privacy protections already in place.” In the district court’s eyes, this was because “Adams enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves” the male bathroom. The district court discounted the privacy interests at play by claiming that “Adams has encountered no problems using men’s restrooms in public places, and there were no reports of problems from any boys or boys’ parents during the six weeks … when Adams used the boys’ restrooms.” Thus, the district court found “the School Board’s concerns about privacy” to be “only conjectural.”
But the district court’s contentions, which the dissent, Adams, and many amici echo, minimize the undisputed fact that, at Nease, students’ use of the sex-separated bathrooms is not confined to individual stalls, e.g., students change in the bathrooms and, in the male bathrooms, use undivided urinals. These contentions also ignore that the privacy interests, which animated the School Board’s decision to implement the policy, are sex-specific privacy interests. After all, only sex-specific interests could justify a sex-specific policy. The privacy interests hinge on using the bathroom away from the opposite sex and shielding one’s body from the opposite sex, not using the bathroom in privacy. Were it the latter, then only single-stall, sex-neutral bathrooms would pass constitutional muster. But that is not the law. Nor is the law predicated on “problems” or “reports of problems” from students or their parents when it comes to the validity of sex-separated bathrooms (although the record reflects that two students did, in fact, complain to the school and that—as stipulated by the parties—parents and students within the School District objected to a policy that would allow students to use the bathroom that matches their gender identity, instead of their biological sex, out of privacy, safety, and welfare concerns).
The sex-specific privacy interests for all students in the sex-separated bathrooms at Nease attach once the doorways to those bathrooms swing open. The privacy interests are not confined to the individual stalls in those bathrooms. In reaching the contrary conclusion, the district court erred by misconstruing the privacy interests at issue, minimizing the factual and practical realities of how the sex-separated bathrooms operate, and discounting the parties’ stipulation that students and parents objected to any bathroom policy that would commingle the sexes out of privacy concerns, among others. Cf. Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 677–78 (2010) (“[F]actual stipulations are ‘formal concessions … that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.’” (second alteration in original) (quoting 2 K. Broun, McCormick on Evidence § 254, at 181 (6th ed. 2006))).
The dissent repeats the district court’s mistakes. Of particular note, in asserting that the School Board only provided “speculative” evidence in support of linking the bathroom policy to the protection of students’ privacy interests, the dissent discounts the parties’ stipulation that parents and students within the School District objected to a bathroom policy that commingled the sexes based on privacy concerns, among others. Jill Pryor Dis. Op. at 45, 52 n.22. The dissent equates concerns about privacy in the bathroom with unlawful complaints about racial segregation. Id. at 52 n.22, 64–65. But that is a false equivalence. As explained above, it is well established that individuals enjoy protection of their privacy interests in the bathroom, so concerns about privacy in the bathroom are legitimate concerns. In contrast, it is well established that racially segregating schools is unconstitutional, so complaints about racially integrating schools are illegitimate complaints. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). Only by conflating legitimate concerns about privacy with illegitimate, and unconstitutional, complaints about racial integration is the dissent able to discount the parties’ binding stipulation and claim that the School Board’s bathroom policy, which directly advances the important governmental objective of protecting students’ privacy interests in the bathroom, fails intermediate scrutiny.
Finally, we turn to the dissent’s contention that, despite all indications to the contrary, this case is not a case about “the legality of separating bathrooms by sex,” which is primarily advanced by Judge Jill Pryor’s dissent but also is discussed in Judge Jordan’s dissent. Jill Pryor Dis. Op. at 2; Jordan Dis. Op. at 11–12. As such, the dissent claims that this case is about the exclusion of Adams, as “a boy,” from the male bathrooms in which the School Board restricts access to “biological boys.”
The dissent’s argument relies on a misreading of the record and, in fact, contradicts the dissent’s own analysis. The district court explained that Adams “is transgender, meaning he ‘consistently, persistently, and insistently’ identifies as a boy, a gender that is different than the sex he was assigned at birth (female).” In its analysis of the Equal Protection Clause claim, the district court stated that “[t]he undisputed evidence is that [Adams] is a transgender boy and wants access to use the boys’ restroom.” (Emphasis added). And, in concluding that the bathroom policy violated the Equal Protection Clause, the district court explained that “[t]here is no evidence to suggest that [Adams’s] identity as a boy is any less consistent, persistent, and insistent than any other boy. Permitting [Adams] to use the boys’ restroom will not integrate the restrooms between the sexes.” (Emphasis added). In holding the bathroom policy unconstitutional, the district court never made a finding that Adams is a “biological boy,” as the dissent claims, which is the classification that the School Board uses to restrict access to the male bathrooms and the classification that Adams is challenging. Jill Pryor Dis. Op. at 29 n.10. The district court looked to Adams’s gender identity—not Adams’s biological sex—for purposes of evaluating the bathroom policy. And even the dissent acknowledges, as it must, that gender identity is different from biological sex. Id. at 32 (citing the district court’s order to explain “that ‘transgender’ persons ‘consistently, persistently, and insistently identif[y] as a gender different [from] the sex they were assigned at birth’”).
Thus, despite the dissent’s suggestion, the district court did not make a finding equating gender identity as akin to biological sex. Nor could the district court have made such a finding that would have legal significance. To do so would refute the Supreme Court’s longstanding recognition that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion); see also Immutable, Oxford English Dictionary (2d ed. 1989) (“Not mutable; not subject to or susceptible of change; unchangeable, unalterable, changeless.”). Regardless of Adams’s genuinely held belief about gender identity—which is not at issue—Adams’s challenge to the bathroom policy revolves around whether Adams, who was “determined solely by the accident of birth” to be a biological female—is allowed access to bathrooms reserved for those who were “determined solely by the accident of birth” to be biologically male. Thus, we are unpersuaded by the dissent’s argument that the district court could make any factual finding (that would not constitute clear error) to change an individual’s immutable characteristic of biological sex, just as the district court could not make a factual finding to change someone’s immutable characteristic of race, national origin, or even age for that matter. Simply put, and contrary to the dissent’s claims, this is a case about the constitutionality and legality of separating bathrooms by biological sex because it involves an individual of one sex seeking access to the bathrooms reserved for those of the opposite sex. Adams’s gender identity is thus not dispositive for our adjudication of Adams’s equal protection claim.
In sum, the bathroom policy does not unlawfully discriminate on the basis of biological sex.
2. The Bathroom Policy Does Not Discriminate Against Transgender Students
We now turn to whether the School Board’s policy, which does not unlawfully discriminate on the basis of sex, discriminates against transgender students. In finding a violation of the Equal Protection Clause, the district court never properly conducted the requisite intermediate scrutiny analysis and, instead, concluded that “although the policy treats most boys and girls the same, it treats Adams differently because, as a transgender boy, he does not act in conformity with the sex-based stereotypes associated with” biological sex. There are two flaws in the district court’s conclusion.
First, the bathroom policy facially classifies based on biological sex—not transgender status or gender identity. Transgender status and gender identity are wholly absent from the bathroom policy’s classification. And both sides of the classification—biological males and biological females—include transgender students. To say that the bathroom policy singles out transgender students mischaracterizes how the policy operates.
Both Adams and the dissent rely on Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to advance this faulty reasoning. Jill Pryor Dis. Op. at 35–37. Bostock involved employment discrimination under Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq.—specifically, various employers’ decisions to fire employees based solely on their sexual orientations or gender identities. Id. at 1737–38. As a preliminary matter, the Supreme Court expressly declined to address the issue of sex-separated bathrooms and locker rooms, stating:
Id. at 1753. And the instant appeal is about schools and children—and the school is not the workplace. See, e.g., Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999) (“Courts, moreover, must bear in mind that schools are unlike the adult workplace.”); id. at 675 (Kennedy, J., dissenting) (noting the “differences between children and adults, peers and teachers, schools and workplaces” and that “schools are not workplaces and children are not adults”).
Under Title VII, … we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
But even holding those preliminary points aside, Bostock does not resolve the issue before us. While Bostock held that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex,” 140 S. Ct. at 1747, that statement is not in question in this appeal. This appeal centers on the converse of that statement—whether discrimination based on biological sex necessarily entails discrimination based on transgender status. It does not—a policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, while the bathroom policy at issue classifies students on the basis of biological sex, it does not facially discriminate on the basis of transgender status. Because the bathroom policy divides students into two groups, both of which include transgender students, there is a “lack of identity” between the policy and transgender status, as the bathroom options are “equivalent to th[ose] provided [to] all” students of the same biological sex. See Geduldig v. Aiello, 417 U.S. 484, 496–97 & n.20 (1974); see also Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 271 (1993) (reaffirming this reasoning).
Our conclusion that there is a “lack of identity” between the bathroom policy and transgender status is informed by the Supreme Court’s reasoning in Geduldig. In that case, the Supreme Court held that a state insurance program that excluded coverage for certain pregnancy-related disabilities did not classify on the basis of sex. Geduldig, 417 U.S. at 486, 496–97. Because the insurance program created two groups—a group that contained only females and a group that contained males and females—there was a “lack of identity” between the exclusion of those female-related disabilities from coverage and discrimination on the basis of being female since “[t]he fiscal and actuarial benefits of the program … accrue[d] to members of both sexes.” Id. at 496 n.20. Like the insurance program in Geduldig, the School Board’s bathroom policy does not classify students based on transgender status because a “lack of identity” exists between transgender status and a policy that divides students into biological male and biological female groups—both of which can inherently contain transgender students—for purposes of separating the male and female bathrooms by biological sex.
Second, the contention that the School Board’s bathroom policy relied on impermissible stereotypes associated with Adams’s transgender status is wrong. The bathroom policy does not depend in any way on how students act or identify. The bathroom policy separates bathrooms based on biological sex, which is not a stereotype. As this opinion has explained, the Supreme Court has repeatedly recognized the biological differences between the sexes by grounding its sex-discrimination jurisprudence on such differences. See, e.g., Nguyen, 533 U.S. at 73 (“The difference between men and women in relation to the birth process is a real one.”); Virginia, 518 U.S. at 533 (“Physical differences between men and women, however, are enduring: ‘[T]he two sexes are not fungible … .’” (first alteration in original) (quoting Ballard v. United States, 329 U.S. 187, 193 (1946))). And the biological differences between males and females are the reasons intermediate scrutiny applies in sex-discrimination cases in the first place. See Frontiero, 411 U.S. at 686 (“[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility.’” (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972))). To say that the bathroom policy relies on impermissible stereotypes because it is based on the biological differences between males and females is incorrect. See Nguyen, 533 U.S. at 73 (“Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real.”).
At most, Adams’s challenge amounts to a claim that the bathroom policy has a disparate impact on the transgender students in the School District. And a disparate impact alone does not violate the Constitution. Instead, a disparate impact on a group offends the Constitution when an otherwise neutral policy is motivated by “purposeful discrimination.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979); accord Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66 (1977).
The district court proclaimed that the bathroom policy was “no longer a neutral rule” because it “applies differently to transgender students” and because the School Board became “aware of the need to treat transgender students the same as other students.” But the Supreme Court has long held that “‘[d]iscriminatory purpose’ … implies more than intent as volition or intent as awareness of consequences.” Feeney, 442 U.S. at 279 (quoting United Jewish Orgs. v. Carey, 430 U.S. 144, 180 (1977) (Stewart, J., concurring in the judgment)); see also Bray, 506 U.S. at 271–72. Instead, a discriminatory purpose “implies that the decisionmaker,” in this case the School Board, “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279.
There is no evidence suggesting that the School Board enacted the bathroom policy “because of … its adverse effects upon” transgender students. See id. The district court itself noted that the School Board did not even “have transgender students in mind when it originally established separate multi-stall restrooms for boys and girls.” The policy impacts approximately 0.04 percent of the students within the School District—i.e., sixteen transgender students out of 40,000 total students—in a manner unforeseen when the bathroom policy was implemented. And to accommodate that small percentage, while at the same time taking into account the privacy interests of the other students in the School District, the School Board authorized the use of sex-neutral bathrooms as part of its Best Practices Guidelines for LGBTQ issues. As discussed above, the School Board provided this accommodation only after undertaking significant education efforts and receiving input from mental health professionals and LGBTQ groups both within and beyond the School District community.
Contrary to the dissent’s claim, the School Board, through the Best Practices Guidelines, did not discriminatorily “single out transgender students.” Jill Pryor Dis. Op. at 32. The School Board sought to accommodate transgender students by providing them with an alternative—i.e., sex-neutral bathrooms—and not requiring them to use the bathrooms that match their biological sex—i.e., the bathroom policy Adams challenges. The School Board did not place a special burden on transgender students by allowing them to use sex-neutral bathrooms under the Best Practices Guidelines, which came well after the implementation of the longstanding bathroom policy separating bathrooms by biological sex; rather, the School Board gave transgender students an alternative option in the form of an accommodation. Ultimately, there is no evidence of purposeful discrimination against transgender students by the School Board, and any disparate impact that the bathroom policy has on those students does not violate the Constitution.
B. The Bathroom Policy Does Not Violate Title IX
Title IX was passed as part of the Education Amendments of 1972 and “patterned after” the Civil Rights Act of 1964. Cannon v. Univ. of Chi., 441 U.S. 677, 694–96 (1979). The statute mandates that, subject to certain exceptions: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance … .” 20 U.S.C. § 1681(a). Its purpose, as derived from its text, is to prohibit sex discrimination in education. See United States v. Bryant, 996 F.3d 1243, 1264 (11th Cir. 2021) (“As in all cases of statutory interpretation, ‘the purpose must be derived from the text.’” (quoting Antonin Scalia & Bryan A. Garner, Reading Law 56 (2012))), cert. denied, 142 S. Ct. 583 (2021). The statute explicitly provides for administrative enforcement, see 20 U.S.C. § 1682, and the Supreme Court also has read in an implied private right of action for damages and injunctive relief, see Cannon, 441 U.S. at 717 (reading an implied private right of action into Title IX); Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992) (concluding damages are a remedy available for an action under Title IX).
Notwithstanding Title IX’s general prohibition on sex discrimination, the statute provides an express carve-out with respect to living facilities: “nothing contained [in Chapter 38] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. The regulations implementing Title IX explicitly permit schools receiving federal funds to “provide separate housing on the basis of sex,” so long as the housing is “[p]roportionate in quantity to the number of students of that sex applying for such housing” and “[c]omparable in quality and cost to the student,” 34 C.F.R. § 106.32(b), and “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the facilities “provided for students of one sex [are] comparable to such facilities provided for students of the other sex,” id. § 106.33.
As such, this appeal requires us to interpret the word “sex” in the context of Title IX and its implementing regulations. We cannot, as the Supreme Court did in Bostock, decide only whether discrimination based on transgender status necessarily equates to discrimination on the basis of sex, as Adams would have us do. 140 S. Ct. at 1739 (“The question isn’t just what ‘sex’ meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions ‘because of’ sex.”). This is because Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for differentiating between the sexes when it comes to separate living and bathroom facilities, among others. Therefore, if to “provide separate toilet … facilities on the basis of sex” means to provide separate bathrooms on the basis of biological sex, then the School Board’s policy fits squarely within the carve-out. 34 C.F.R. § 106.33. And if the School Board’s policy fits within the carve-out, then Title IX permits the School Board to mandate that all students follow the policy, including Adams.
1. The Statute Is Not Ambiguous
To interpret “sex” within the meaning of Title IX, we look to the ordinary meaning of the word when it was enacted in 1972. Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (“[O]ur job is to interpret the words consistent with their ‘ordinary meaning … at the time Congress enacted the statute.’” (second alteration in original) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979))). One of the methods of determining the ordinary meaning of a word “is by looking at dictionaries in existence around the time of enactment.” United States v. Chinchilla, 987 F.3d 1303, 1308 (11th Cir. 2021) (quoting EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1026 (11th Cir. 2016)). Reputable dictionary definitions of “sex” from the time of Title IX’s enactment show that when Congress prohibited discrimination on the basis of “sex” in education, it meant biological sex, i.e., discrimination between males and females. See, e.g., Sex, American Heritage Dictionary of the English Language (1976) (“The property or quality by which organisms are classified according to their reproductive functions.”); Sex, American Heritage Dictionary of the English Language (1979) (same); Sex, Female, Male, Oxford English Dictionary (re-issue ed. 1978) (defining “sex” as “[e]ither of the two divisions of organic beings distinguished as male and female respectively,” “female” as “[b]elonging to the sex which bears offspring,” and “male” as “[o]f or belonging to the sex which begets offspring, or performs the fecundating function of generation”); Sex, Webster’s New World Dictionary (1972) (“[E]ither of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions.”); Sex, Female, Male, Webster’s Seventh New Collegiate Dictionary (1969) (defining “sex” as “either of two divisions of organisms distinguished respectively as male or female,” “female” as “an individual that bears young or produces eggs as distinguished from one that begets young,” and “male” as “of, relating to, or being the sex that begets young by performing the fertilizing function”); Sex, Random House College Dictionary (rev. ed. 1980) (“[E]ither the male or female division of a species, esp. as differentiated with reference to the reproductive functions.”).
The district court found “sex” to be “ambiguous as applied to transgender students,” due to lack of explicit definition in either Title IX or its implementing regulations. And in deciding that “sex” was an ambiguous term, it noted that other courts, including the majority in Grimm v. Gloucester County School Board, “did not find the meaning [of ‘sex’] to be so universally clear” under Title IX drafting-era dictionary definitions. But the district court mentioned only one dictionary definition—the American College Dictionary (1970), defining “sex” as “the character of being either male or female”—to support its conclusion that “sex” was an ambiguous term at the time of Title IX’s enactment.
In the face of the overwhelming majority of dictionaries defining “sex” on the basis of biology and reproductive function, the district court’s determination that a single dictionary, which is supposedly at variance from its peers, supports the conclusion that the word “sex” had an ambiguous meaning when Title IX was enacted is wrong ab initio. Moreover, even a cursory examination of the American College Dictionary’s definition of “sex” confirms that it, too, defines “sex” based on biology and reproductive function, as illustrated by its definitions of “female” and “male.” See Female, American College Dictionary (1970) (“[A] human being of the sex which conceives and brings forth young; a woman or girl.”); Male, American College Dictionary (1970) (“[B]elonging to the sex which begets young, or any division or group corresponding to it.”). The ambiguity purportedly found by the district court simply is not there.
But even if the district court’s reading of the American College Dictionary supported its finding of “sex” to be ambiguous, a statutory term is not deemed to be ambiguous simply because the statute does not explicitly define the term or a single dictionary provides a different meaning. See Perrin, 444 U.S. at 42 (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”). Indeed, “[a]mbiguity is a creature not of definitional possibilities but of statutory context.” Brown v. Gardner, 513 U.S. 115, 118 (1994). And reading in ambiguity to the term “sex” ignores the statutory context of Title IX.
For one, Title IX explicitly provides a statutory carve-out for “maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. So, if “sex” were ambiguous enough to include “gender identity,” as Adams suggests and as the district court ultimately concluded, then this carve-out, as well as the various carve-outs under the implementing regulations, would be rendered meaningless. This is because transgender persons—who are members of the female and male sexes by birth—would be able to live in both living facilities associated with their biological sex and living facilities associated with their gender identity or transgender status. If sex were ambiguous, it is difficult to fathom why the drafters of Title IX went through the trouble of providing an express carve-out for sex-separated living facilities, as part of the overall statutory scheme. For this reason alone, reading in ambiguity to the term “sex” ignores the overall statutory scheme and purpose of Title IX, along with the vast majority of dictionaries defining “sex” based on biology and reproductive function.
The district court claimed that the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), and this Court’s decision in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), provided support for its conclusion that “the meaning of ‘sex’ in Title IX includes ‘gender identity’ for purposes of its application to transgender students.” But both cases dealt with workplace discrimination involving nonconformity with sex stereotypes; neither case departed from the plain meaning of “sex,” generally, or as used within Title IX. Price Waterhouse, 490 U.S. at 250 (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, [has discriminated on the basis of sex].”); Glenn, 663 F.3d at 1318–19 (“All persons, whether transgender or not, are protected from discrimination on the basis of [a sex stereotype].”).
Neither case reads “gender identity” into the definition of “sex”; they discuss unlawful action by employers’ reliance on impermissible stereotypes. And, as discussed above, “sex” is not a stereotype. Just as importantly, and contrary to Adams’s arguments that Bostock equated “sex” to “transgender status,” the Supreme Court in Bostock actually “proceed[ed] on the assumption” that the term “sex,” as used in Title VII, “refer[ed] only to biological distinctions between male and female.” 140 S. Ct. at 1739 (emphasis added). There simply is no alternative definition of “sex” for transgender persons as compared to nontransgender persons under Title IX. The district court erred by divining one, and applying that definition to Adams, because courts must “avoid interpretations that would ‘attribute different meanings to the same phrase’” or word in “all but the most unusual” of statutory circumstances. Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1512 (2019) (quoting Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 329 (2000)).
In this regard, the district court’s error is made even clearer when we consider the ramifications of its reading of Title IX. Reading “sex” to include “gender identity,” and moving beyond a biological understanding of “sex,” would provide more protection against discrimination on the basis of transgender status under the statute and its implementing regulations than it would against discrimination on the basis of sex. Title IX and its implementing regulations prohibit discrimination on the basis of sex, but they also explicitly permit differentiating between the sexes in certain instances, including school bathrooms, locker rooms, and showers, under various carve-outs. As explained in our discussion about the statutory scheme and purpose of Title IX, transgender persons fall into the preexisting classifications of sex—i.e., male and female. Thus, they are inherently protected under Title IX against discrimination on the basis of sex. But reading “sex” to include “gender identity,” as the district court did, would result in situations where an entity would be prohibited from installing or enforcing the otherwise permissible sex-based carve-outs when the carve-outs come into conflict with a transgender person’s gender identity. Such a reading would thereby establish dual protection under Title IX based on both sex and gender identity when gender identity does not match sex. That conclusion cannot comport with the plain meaning of “sex” at the time of Title IX’s enactment and the purpose of Title IX and its implementing regulations, as derived from their text.
Finally, in this appeal, any action by the School Board based on sex stereotypes is not relevant to Adams’s claim because, as discussed, Title IX and its implementing regulations expressly allow the School Board to provide separate bathrooms “on the basis of sex.” See 20 U.S.C. §§ 1681(a), 1686; 34 C.F.R. § 106.33. Regardless of whether Adams argues that the bathroom policy itself violates Title IX’s general prohibition against sex discrimination, this Court must still determine whether the application of the policy fits into Title IX’s carve-out, which it does. An example makes this clear.
Think of a biological female student, who does not identify as transgender and who sued her school under Title IX to gain access to the male bathroom. Regardless of whether preventing the female student from using the male bathroom would constitute separation on the basis of sex—and it plainly would—the carve-out for bathrooms under Title IX would provide the school a safe harbor. In other words, because Title IX explicitly provides for separate bathrooms on the basis of sex, the student’s claim would fail. So, too, must Adams’s claim, because the carve-out for bathrooms provides the School Board a safe harbor for the same reasons.
In summary, Title IX prohibits discrimination on the basis of sex, but it expressly permits separating the sexes when it comes to bathrooms and other living facilities. When we read “sex” in Title IX to mean “biological sex,” as we must, the statutory claim resolves itself. Title IX’s implementing regulations explicitly allow schools to “provide separate toilet … facilities on the basis of [biological] sex.” 34 C.F.R. § 106.33. The School Board does just that. Because the School Board thus acts in accordance with Title IX’s bathroom-specific regulation, its decision to direct Adams—who was born, and enrolled in the School District as, a female—to use the female bathrooms is consistent with Title IX’s precepts. As such, Adams’s claim under the statute must fail.
2. Even if the Statute Were Unclear, the Spending Clause Militates Toward Finding for the School Board
Even if the term “sex,” as used in Title IX, were unclear, we would still have to find for the School Board. This is because Congress passed Title IX pursuant to its authority under the Spending Clause. U.S. Const. art. I, § 8, cl. 1; Davis, 526 U.S. at 640 (“[W]e have repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause.”). And “if Congress intends to impose a condition on the grant of federal moneys [under its Spending Clause authority], it must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Further, “private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” Davis, 526 U.S. at 640.
A safeguard of our federalist system is the demand that Congress provide the States with a clear statement when imposing a condition on federal funding because “legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” Pennhurst, 451 U.S. at 17. Thus, the “legitimacy of Congress’ power to legislate under the [S]pending [Clause] … rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Id. (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 585–98 (1937)). Otherwise, if Congress’s spending authority were “to be limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause” would “give ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.” South Dakota v. Dole, 483 U.S. 203, 217 (1987) (O’Connor, J., dissenting) (quoting United States v. Butler, 297 U.S. 1, 78 (1936)).
Under the Spending Clause’s required clear-statement rule, the School Board’s interpretation that the bathroom carve-out pertains to biological sex would only violate Title IX if the meaning of “sex” unambiguously meant something other than biological sex, thereby providing the notice to the School Board that its understanding of the word “sex” was incorrect. As we have thoroughly discussed, it does not. The dissent implicitly acknowledges this point. Jill Pryor Dis. Op. at 57 n.25 (“I … have no reason to address the majority opinion’s Spending Clause argument. The Spending Clause cannon of construction only comes into play if we find ourselves dealing with an ambiguous statute.”). Moreover, schools across the country separate bathrooms based on biological sex and colleges and universities across the country separate living facilities based on biological sex. The notion that the School Board could or should have been on notice that its policy of separating male and female bathrooms violates Title IX and its precepts is untenable.
Title IX’s statutory structure and corresponding regulatory scheme illustrate why a clear statement from Congress equating “sex” to “gender identity” or “transgender status” is so important. Adams’s view of what constitutes “sex” for purposes of Title IX will have ramifications far beyond the bathroom door at a single high school in Ponte Vedra, Florida. This is because Title IX’s statutory carve-out from its general prohibition against sex discrimination applies to “living facilities,” not only bathrooms. 20 U.S.C. § 1686. And the same regulation that authorizes schools to provide separate bathrooms on the basis of sex also permits schools to provide separate “locker room … and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. Therefore, affirming the district court’s order, and equating “sex” with “gender identity” or “transgender status” for purposes of Title IX, would, at the very least, generally impact living facilities, locker rooms, and showers, in addition to bathrooms, at schools across the country—affecting students in kindergarten through the post-graduate level.
For the same reason, affirming the district court’s order would have broad implications for sex-separated sports teams at institutions subject to Title IX, including public schools and public and private universities. While Title IX says nothing specifically about sports, its implementing regulations do. Those regulations, which necessarily flow from Title IX’s general prohibition against sex discrimination, mirror the blanket-rule-with-specific-exception framework that Title IX applies to living facilities. The implementing regulations say, first, that “[n]o person shall, on the basis of sex, be excluded from participation in … any interscholastic, intercollegiate, club or intramural athletics offered by a recipient [of federal funds], and no recipient shall provide any such athletics separately on such basis.” 34 C.F.R. § 106.41(a). In the very next paragraph, however, the regulations instruct that, notwithstanding the above statement, “a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Id. § 106.41(b). Thus, equating “sex” to “gender identity” or “transgender status” would also call into question the validity of sex-separated sports teams.
To be sure, the district court disclaimed any suggestion that its decision would apply beyond the bathroom. But Title IX is not so limited; it applies to “living facilities,” 20 U.S.C. § 1686, “toilet, locker room, and shower facilities,” 34 C.F.R. § 106.33, and sports teams, id. § 106.41, at any institution subject to its mandates. The district court did not identify any textual or other support—because there is none—for its claim that its reading of “sex” applies only to high school bathrooms. Neither can the dissent identify any textual or persuasive support to cabin the district court’s decision to high school bathrooms. Jill Pryor Dis. Op. at 62-64. If “sex” as used in Title IX means “gender identity” or “transgender status,” then there is simply no principled reason to limit application of the district court’s reasoning to the high school bathroom. Absent a clear statement from Congress, such a reading of Title IX would offend first principles of statutory interpretation and judicial restraint. **** In sum, commensurate with the plain and ordinary meaning of “sex” in 1972, 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.
For all these reasons, we reverse and remand the district court’s order.
REVERSED AND REMANDED.
- LGBTQ is an acronym for the phrase “lesbian, gay, bisexual, transgender, and questioning (and/or queer).”
- Specifically, the revised opinion eschewed addressing Title IX. And, instead, the revised opinion sua sponte framed Adams’s Equal Protection Clause claim as a challenge to the School Board’s enrollment documents policy—i.e., the means by which the School Board determines biological sex upon a student’s entrance into the School District—and not as a challenge to the School Board’s bathroom policy—i.e., the policy separating the male and female bathrooms by biological sex instead of transgender status or gender identity. But this case has never been about the enrollment documents policy.
This was not the challenge advanced by Adams in the district court. Indeed, Adams centered the district court litigation on the bathroom policy. For example, in Adams’s amended complaint, Adams sought relief for “his exclusion” and denial of “equal access to the boys’ restroom.” Adams specifically challenged “[the School Board’s] policy of excluding transgender students from the single-sex facilities that match their gender identity.” Then, in the joint pretrial statement, Adams sought to recover damages for the harm Adams suffered “as a result of [the School Board’s] implementation of its discriminatory restroom policy.” In Adams’s proposed findings of fact and conclusions of law, Adams defined the School Board’s purported discriminatory bathroom policy as “[the School Board’s] policy, custom, or usage, as these terms are used in 42 U.S.C. § 1983, barring transgender students from the restrooms consistent with their gender identity.” And because Adams claimed that the policy “treated [Adams] differently (i) from other boys, who can use restrooms that match their male gender identity; and (ii) from non-transgender students, since the policy in effect relegates him to a gender neutral restroom,” Adams sought to have the district court enjoin the School Board from enforcing a policy “that denies transgender students access to and use of restrooms that match a student’s gender identity.”
Ultimately, Adams maintained, until this en banc proceeding after two prior opinions had been vacated, that this lawsuit was about allowing transgender students to access bathroom facilities that match their gender identities, not revising the means by which the School Board determines biological sex. While Adams now tries to raise a new claim that the enrollment documents policy violates the Equal Protection Clause because it creates an “arbitrary sex-based distinction,” Adams cannot amend the complaint by arguments made in an appellate brief. Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (explaining that a plaintiff may not amend the complaint by argument in an appellate brief).
- Adams also argues that the appeal of the district court’s order should be classified as an as-applied challenge to the School Board’s bathroom policy limited to Adams’s particular circumstances. But that does not help in our resolution of this appeal because “classifying a lawsuit as facial or as-applied … does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019). Indeed, an as-applied challenge merely “affects the extent to which” a plaintiff must demonstrate “the invalidity of the challenged law” or constitutional violation and “the corresponding ‘breadth of the remedy.’” Id. (quoting Citizens United v. FEC, 558 U.S. 310, 331 (2010)). But an alleged violation of one individual’s constitutional rights under the Equal Protection Clause would necessarily constitute a violation of the Equal Protection Clause and the Constitution at large, regardless of the individually-applied remedy. Further, as we discuss below, equating “sex” to “gender identity” or “transgender status” under Title IX, as Adams would have us do as a matter of statutory interpretation, would touch upon the interests of all Americans—not just Adams—who are students, as well as their parents or guardians, at institutions subject to the statute. We therefore do not find merit in Adams’s attempt to cabin the lawsuit to Adams’s particular circumstances.
- For purposes of this opinion, unless otherwise indicated, our references to “the dissent” in this opinion refer to Judge Jill Pryor’s dissent.
- The dissent separately asserts that intermediate scrutiny applies on the ground that there is “no doubt that Adams, as a transgender individual, is a member of a quasi-suspect class.” Jill Pryor Dis. Op. at 38. We have two responses. First, the dissent reaches this conclusion through a selective reading of the record, citing to exhibits and testimony where it sees fit. But the dissent fails to acknowledge that the district court did not address the issue, expressly stating that it had “no occasion to engage in the further analysis” as to whether “transgender people are a quasi-suspect class, deserving of heightened scrutiny per se.” Like the district court, we find no need to address the issue, given our conclusion that intermediate scrutiny applies, in any event. Second, and contrary to the dissent’s assertion, we have grave “doubt” that transgender persons constitute a quasi-suspect class. Indeed, the Supreme Court has rarely deemed a group a quasi-suspect class. See, e.g., City of Cleburne, 473 U.S. at 442–46.
- Although we do not need to address whether Adams is “similarly situated” to biological boys in the School District for purposes of reviewing the bathroom policy under the Equal Protection Clause in the first instance, we note that there are serious questions as to whether Adams would meet this requirement. See City of Cleburne, 473 U.S. at 439. The promise of equal protection is limited to “keep[ing] governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger, 505 U.S. at 10. When it comes to the bathroom policy, biological sex is the “relevant respect,” id., with respect to which persons must be “similarly situated,” City of Cleburne, 473 U.S. at 439, because biological sex is the sole characteristic on which the bathroom policy and the privacy interests guiding the bathroom policy are based. And biological sex also is the driving force behind the Supreme Court’s sex-discrimination jurisprudence. See, e.g., Nguyen, 533 U.S. at 73 (“The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific [to men and women].”); Virginia, 518 U.S. at 533 (“Physical differences between men and women, however, are enduring: ‘[T]he two sexes are not fungible … .’” (first alteration in original) (quoting Ballard v. United States, 329 U.S. 187, 193 (1946))); Frontiero, 411 U.S. at 686 (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”). As the Supreme Court has made clear: “To fail to acknowledge even our most basic biological differences … risks making the guarantee of equal protection superficial, and so disserving it.” Nguyen, 533 U.S. at 73.
Adams claims to be similarly situated to biological boys in the School District for purposes of the bathroom policy, even though Adams is not biologically male—the only characteristic on which the policy is based. Throughout the pendency of this case, Adams remained both biologically and anatomically identical to biological females—not males. Thus, in prohibiting Adams from using the male bathrooms, it can be argued that the School Board did not “treat differently persons who are in all relevant respects alike” for purposes of the Equal Protection Clause. Nordlinger, 505 U.S. at 10.
To argue otherwise, the dissent, like the district court, must assert that transgender status and gender identity are equivalent to biological sex. Indeed, this forms the foundation of the dissent’s attempt to frame this case not as a case about the constitutionality and legality of separating bathrooms based on biological sex but rather as a case about the purported unlawfulness of excluding Adams—who attended school as a biological female—from using the male bathroom because, as the dissent claims, Adams is a boy for purposes of the bathroom policy. But such an assertion is contrary to the Supreme Court’s reliance on physiological and biological differences between men and women in its sex-discrimination decisions, which therefore raises serious questions about Adams’s similarly situated status for purposes of the bathroom policy under review. Such an assertion also is undercut by the dissent’s refusal to engage the issue of gender fluidity—i.e., the practice, which the dissent acknowledges, in which some individuals claim to change gender identities associated with the male and female sexes and thereby treat sex as a mutable characteristic. Jill Pryor Dis. Op. at 63 (“This case has no bearing on the question how to assign gender fluid individuals to sex-separated bathrooms.”). But see Frontiero, 411 U.S. at 686 (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”). Such an assertion is further undercut by the dissent’s attempt to categorize transgender persons as members of a quasi-suspect class, which necessarily entails treating transgender persons as distinct from the sexes with which they identify. Jill Pryor Dis. Op. at 40-41. Nevertheless, as the opinion concludes, the bathroom policy passes constitutional muster regardless of whether Adams is similarly situated to biological boys for purposes of the bathroom policy because the policy’s sex-based classification satisfies intermediate scrutiny.
- Nevertheless, the dissent, using Bostock, argues “that ‘sex’ was a but-for cause of the discrimination Adams experienced,” which the dissent argues violates Title IX. Jill Pryor Dis. Op. at 59. This argument is of no avail. Under the dissent’s theory, any lawful policy separating on the basis of “sex” pursuant to Title IX’s statutory and regulatory carve-outs would inherently provide the “but-for cause of … discrimination” that the dissent is concerned about because such a policy inherently involves distinguishing between the sexes from the outset. The dissent’s theory, then, would swallow the carve-outs and render them meaningless because, as the dissent would have it, any policy separating by “sex” would provide “a but-for cause of … discrimination” if a litigant felt that she or he had been discriminated against by the sex-based separation authorized by the carve-outs. Adams, who is a biological female alleging discrimination based on not being able to access the bathrooms reserved for biological males, is no different from such a litigant.
- Adams contends that the School Board made this argument—that Congress must condition funds under its Spending Clause authority in an unambiguous way—for the first time on appeal. Thus, Adams argues that this Court should not consider the School Board’s argument. Adams is incorrect. We are duty bound to apply the correct law; “parties cannot waive the application of the correct law or stipulate to an incorrect legal test.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018); accord United States v. Lee, 29 F.4th 665, 669 n.2 (11th Cir. 2022) (finding that a defendant could not waive the application of the Blockburger test in connection with asserting a violation of the Double Jeopardy Clause). And we are required to apply the clear-statement rule to legislation passed under Congress’s Spending Clause authority. See, e.g., Davis, 526 U.S. at 640 (“In interpreting language in spending legislation, we thus ‘insis[t] that Congress speak with a clear voice,’ recognizing that ‘[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it.’” (alternations in original) (quoting Pennhurst, 451 U.S. at 17)). For these reasons, Adams’s contention lacks merit.