Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022)/Opinion of Judge Wilson
Wilson, Circuit Judge, dissenting:
I concur fully with Judge Jordan’s analysis and agree that we should analyze the bathroom policy as a gender-based classification. I write separately, with his analysis in mind, to add that even accepting the Majority’s argument that the relevant factor is an individual’s biological sex, the policy is still discriminatory, and therefore we must engage in a robust Title IX and Equal Protection analysis.
Under the Majority’s rationale, the bathroom policy 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.” Maj. Op. at 4. Because the policy uses these same indicia for all students, according to the Majority, the policy is not discriminatory. See Maj. Op. at 31. Underlying this sex-assigned-at-matriculation bathroom policy, however, is the presumption that biological sex is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended documentation because a student’s sex does not change. This presumption is both medically and scientifically flawed. After considering a more scientific and medical perspective on biological sex, it is clear that the bathroom policy’s refusal to accept updated medical documentation is discriminatory on the basis of sex.
I. Biological Sex is Not Static
For argument’s sake, I adopt the Majority’s succinct definition of biological sex: sex based on chromosomal structure and anatomy at birth. Under this definition, assigning sex at birth is typically a non-issue. Any person who has been in a delivery room knows that doctors routinely and with little effort ascertain an infant’s biological sex. For this reason, it is easy to presume that identifying biological sex is per se accurate and correctly determinable in the first instance.
However, there are thousands of infants born every year whose biological sex is not easily or readily categorizable at birth. As Allan M. Josephson, M.D., an expert witness for the School Board, explained, “there are rare individuals who are delineated ‘intersex’ because they have physical, anatomical sex characteristics that are a mixture of those typically associated with male and female designations (e.g. congenital adrenal hyperplasia).”
The word intersex is an umbrella term describing a range of natural physiological variations—including external genitals, internal sex organs, chromosomes, and hormones—that complicate the typical binary of male and female. Intersex is not a gender identity nor a sexual orientation, but rather a way to describe conditions of physiological development. These variations occur for a variety of reasons, and the consequent developmental variations may become apparent at different ages. Intersex people have been recognized for millennia,[1] and courts have been confronted with many intersex-related legal issues.[2]
For many intersex people, biological sex is not determinable at birth. Although intersex people are not the same as LGBTQ people, they face many of the same issues. Many intersex individuals are assigned a particular sex at birth based on the available indicia at the time, live their childhood as that sex, and later discover during adolescence—due to biological changes—that they in fact have the chromosomal or reproductive attributes of the opposite sex. Under the Majority’s conception of male and female based on genital and chromosomal indicia—their biological sex assignment has changed.
Take for instance individuals who have 5-alpha reductase, a condition where the person has XY chromosomes (i.e., “male” chromosomes) and an enzyme deficiency that prevents the body from properly processing testosterone.[3] At birth, because the body did not produce enough testosterone to generate external male genitalia, the infant will present as female. Later in life, because hormonal changes at puberty produce active testosterone, male genitalia can develop. So, an infant with 5-alpha reductase assigned female at birth can later develop male genitalia and discover underlying male chromosomes. Medical professionals would most certainly, in the second-instance, recategorize him as biologically male.
5-alpha reductase is not the only condition that causes delayed genital development, and there are similar conditions that cause the existence of ovaries to remain hidden until puberty and ovulation. Deanna Adkins, M.D., a pediatric endocrinologist at Duke University and expert for the plaintiff, explained that intersex variations occur frequently enough that doctors use a scale called the Prader Scale to describe the genitalia on a spectrum from male to female.
How then, does the bathroom policy account for intersex people?
II. The Bathroom Policy is Discriminatory on Biological Sex Grounds
Despite the scientific reality that intersex individuals exist and develop changes in the presentation of their biological sex over time, the School Board policy refuses to accept changes to gender or sex documentation after matriculation. The student with 5-alpha reductase who develops male genitalia and discovers male chromosomes would be barred from updating their biological sex documentation and, per the policy, remains bound to continue using the female restroom despite having medically documented male genitalia.
Thus, these intersex students, unlike other students, cannot use the bathroom associated with their medically assigned biological sex. No other category of student is required to use the bathroom associated with the opposite biological sex, and therefore such a policy is plainly discriminatory.
All of this makes the Majority’s deployment of the “proverbial straw man” all the more troubling. Jordan Diss. Op. at 13. By leading the court down this path of “biological sex,” misconstruing Adams’s argument the whole way, the Majority interprets the School Board’s policy to avoid one constitutional challenge—that the policy is discriminatory on the basis of gender—while inviting another—that the policy is discriminatory on the basis of sex.
III. The Bathroom Policy Does Not Cure the School Board’s Privacy Concerns
The existence of intersex students also reveals how nonsensical the Majority’s justification for the bathroom policy is. Despite the Majority artfully sidestepping the constitutional analysis, they still devote many pages of their opinion to explaining that the policy alleviates “privacy, safety, and welfare concerns.” See Maj. Op. at 5. Without belaboring the point, intersex students do exist; they have or can develop unexpected genitalia. Biological females may still have male genitalia in the female restroom, and vice versa. A sex-assigned-at-matriculation bathroom policy cannot prevent that phenomenon. The case of intersex students therefore proves that a privacy concern rooted in a thin conception of biological sex is untenable.
I do not raise the existence of intersex students as a fantastical hypothetical, but instead as a legitimate issue for consideration. Our sister circuit recently had to consider how intersex students disrupt the underlying premise for bathroom policies. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 615 (4th Cir. 2020), cert. denied, 141 S. Ct. 2878 (2021) (“As demonstrated by the record and amici such as interACT, the Board’s policy is not readily applicable to other students who, for whatever reason, do not have genitalia that match the binary sex listed on their birth certificate … .”).[4] Judge Wynn, in his concurrence, further reasoned:
[i]f the Board’s concern [justifying the policy] were truly that individuals might be exposed to those with differing physiology, it would presumably have policies in place to address differences between pre-pubescent and post-pubescent students, as well as intersex individuals who possess some mix of male and female physical sex characteristics and who comprise a greater fraction of the population than transgender individuals.
Id. at 623.
The same logic applies here. If the School Board were truly concerned about male genitalia in the female bathroom, or vice versa, the policy would account for intersex students and would accept updated documentation.
I conclude by acknowledging that the case before us does not directly force us to consider the panoply of issues related to intersex individuals and the Constitution. However, intersex individuals prove the Majority’s analysis unworkable when applied to a fact pattern just slightly different from the one before us. We should not adopt haphazard and incomplete analyses that will ripple out for cases to come, nor should we do so in order to avoid engaging in the rigorous intermediate scrutiny analysis the Constitution requires. The Fourth Circuit’s initial foray into this topic suggests that this is a real issue and one that will be before this court sooner rather than later. For these, and the reasons stated in Judge Jordan’s capable dissent, I would affirm the district court’s careful opinion, and I therefore respectfully dissent.
- ↑ Justinian’s Code, for example, recognized “hermaphrodites” and instructed they should be assigned whichever “sex … predominates.” 1 Enactments of Justinian: The Digest or Pandects, tit. 5 para. 10 (Scott ed. 1932).
- ↑ See, e.g., Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020) (considering intersex identity on a passport application); M.C. ex rel. Crawford v. Amrhein, 598 F. App’x 143, 149 (4th Cir. 2015) (considering whether sex reassignment surgery in infancy violated a constitutional right to delay medically unnecessary intervention); Thompson v. Lengerich, 798 F. App’x 204, 213 (10th Cir. 2019) (considering equal protection implications for intersex inmates who are guaranteed private showers).
- ↑ Deanna Adkins, M.D., a pediatric endocrinologist at Duke University and expert for the plaintiff, explained this condition in her report along with the following medical conditions that lead to intersex development: Complete Androgen Insensitivity, Klinefelter Syndrome, Turner Syndrome, Mosaic Turner Syndrome, congenital adrenal hyperplasia, and cloacal exstrophy.
- ↑ InterACT is an intersex advocacy organization.