Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022)/Opinion of Judge Rosenbaum

by Robin Stacie Rosenbaum

Rosenbaum, Circuit Judge, Dissenting:

My colleagues Judge Jill Pryor and Judge Jordan have written excellent dissents explaining why the district court’s order here should be affirmed. I join Judge Jordan’s dissent in its entirety and Judge Jill Pryor’s dissent’s equal-protection analysis.^[1] I write separately only to emphasize one point that Judge Jill Pryor already persuasively makes: the Majority Opinion’s misplaced suggestions that affirming the district court’s order on equal-protection grounds would require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities must necessarily be upheld are wrong.^[2]

The Majority Opinion incorrectly suggests that if we affirm the district court here on its equal-protection analysis, required transgender students’ use of locker rooms and other changing facilities of the gender with which they identify will inevitably follow.^[3] Because it may be possible that the suggestion that our decision here would dictate the outcome of all cases involving sex-separated facilities might cloud some readers’ vision as to what the law requires in Adams’s case, I think it’s important to let the sunlight in and show why that’s not accurate.

Namely, the heightened-scrutiny test that governs our analysis is an extremely fact-bound test.

First, it requires the government to identify the important interest or interests that its policy serves. See Nguyen v. INS, 533 U.S. 53, 60–61 (2001) (citation omitted). Here, the School Board identified privacy and safety. But in another case involving another policy or another type of policy, the governmental entity might invoke other important interests. And it might choose not to rely on privacy or safety. Put simply, any opinion we write today cannot limit a future governmental entity’s ability to identify more or different important interests than did the School Board here.

Second, heightened scrutiny requires the governmental entity to provide evidence that its challenged policy “serve[s] important governmental objectives” and is “substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976); see also Plyler v. Doe, 457 U.S. 202, 228–29 (1982) (assuming that the state’s interest was important but holding that the challenged statute failed heightened scrutiny because the record contained no credible evidence supporting the stated governmental objective). That the School Board did not offer any such evidence, see J. Pryor Dissent at 43–51, does not mean that other governmental entities will fail to do so when defending against challenges to their policies. Indeed, the School Board’s failed evidentiary efforts here have no bearing on what another governmental entity might offer in the way of evidence to support its important interest in another case. Nor do they rule out the possibility that a governmental entity in the future might be able to show the right “fit,” Craig, 429 U.S. at 202, between its stated interest or interests and the evidence it offers to show that the challenged policy directly and substantially furthers that interest.

In short, the record in each particular case drives the equal-protection analysis. And that the School Board here utterly failed to present any non-speculative evidence to support the two particular interests it invokes does not in any way prejudice other governmental entities under equal-protection analysis in future challenges. For that reason, the concern that the Majority Opinion suggests that ruling for Adams would mean all equal-protection-based challenges to other policies involving sex-separated facilities would necessarily fail should not even subconsciously figure into the correct analysis here.

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1. As Judge Jordan notes, see Jordan Dissent at 2 n.1, the district court awarded Drew the same damages on both his equal-protection and Title IX claims because it found that the injuries arising out of these violations were “identical” and Adams was not entitled to double damages. See D.E. 192 at 68 n.58. Because affirming on Adams’s equal-protection claim is enough to uphold the judgment, I do not address the Title IX claim.
2. I note that Judge Lagoa’s special concurrence limits itself to the Title IX analysis and does not discuss the equal-protection analysis. For good reason. For the reasons I explain in this dissent, none of the arguments Judge Lagoa asserts in her special concurrence have any application in the equal-protection context. Judge Lagoa’s concurrence, which singles out the Title IX analysis for attack, implicitly concedes that its reasoning does not apply in the equal-protection context. That is so because, as I explain, equal-protection analysis has a limiting principle—the factual record. So affirming the district court’s equal-protection conclusion here would not require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities (and sports) must be upheld.
3. Of course, even if this were correct—and it’s not, as I explain above—it would not be an acceptable reason to avoid doing what the Equal Protection Clause requires.