Appeals court: Separating bathrooms according to biological sex is constitutional and ‘comports with Title IX’

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All 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.”

–JUDGE BARBARA LAGOA

A court decision handed down last week affirmed the constitutionality of requiring transgender students to use the bathroom of their biological sex or a gender-neutral bathroom — a decision that is now likely to set up a Supreme Court hearing on the contentious issue.


Quick Facts


In the case of Adams v. School Board of St. Johns County, the 11th Circuit U.S. Court of Appeals ruled last week that the school district did not discriminate against a transgender student by requiring her to use either the girls’ bathroom or a single-stall gender-neutral bathroom. In 2015, a ninth grade girl identifying as male chose to use the boys’ bathroom for six weeks until two boys complained.

The student was then informed she must follow the St. Johns County School District’s policy requiring that she use the bathroom according to her biological sex or, alternatively, use a gender-neutral bathroom.

The student filed suit, claiming that the policy discriminated against transgender students. A district court ruled in the student’s favor, finding that the policy violated the Equal Protection Clause and Title IX.

In a 7-4 ruling, the 11th Circuit overturned the district court’s decision. Judge Barbara Lagoa wrote the majority opinion, holding that the separation of male and female bathrooms based on a student’s biological sex “passes constitutional muster and comports with Title IX.”

In fact, the court held, protecting the privacy of students from being seen by the opposite sex is an important governmental objective. “Understanding why is not difficult—school-age children ‘are still developing, both emotionally and physically,” the court wrote, adding that all 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.”

The court concluded that 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.”

There were several dissenting opinions written in this case. Judge Jill Pryor likened the school district policy of forcing transgender students to use biologically appropriate bathrooms or even gender-neutral bathrooms to Jim Crow laws that segregated bathroom access by skin color.

“By excluding Adams from the boys’ restrooms at Nease High School and relegating him to the gender-neutral restrooms, the School District forced Adams to wear what courts have called a ‘badge of inferiority,’” she concluded.

In response, Judge Lagoa took the unusual step of writing a special concurring opinion that specifically addressed the negative impact allowing the opposite sex to invade female spaces would have on the rights of women and girls in both education and sports.

As part of it, she noted that Supreme Court Justice Thurgood Marshall, an icon in the fight to overturn Jim Crow laws, once observed that “a sign that says ‘men only’ looks very different on a bathroom door than a courthouse door” and that then-professor (and later Supreme Court Justice) Ruth Bader Ginsburg argued that “the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence.” 

Lagoa then wrote,

“…a definition of ‘sex’ beyond ‘biological sex’ would not only cut against the vast weight of drafting-era dictionary definitions … but would also force female student athletes ‘to compete against students who have a very significant biological advantage, including students who have the size and strength of a male, but identify as female…’ Such a proposition—i.e., commingling both biological sexes in the realm of female athletics—would ‘threaten … to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.’”

In 2020, the Fourth Circuit Court of Appeals ruled in direct opposition of the 11th Circuit in the case of Grimm v. Gloucester County School Board, finding that transgenders have the right to use the bathroom of their preferred gender, rather than their biological sex, under the Equal Rights Clause and Title IX.

The Supreme Court refused to hear an appeal in that case in 2021, but legal experts say that given the now split findings of the two appellate courts, the Supreme Court will have no choice but to take up the issue.

Alliance Defending Freedom, which filed a friend of the court amicus on behalf of several medical professionals, stated,

“We’re pleased the 11th Circuit has affirmed that sex is a distinct biological class that merits protection under the law, a reality that female athletes and so many others across the country have been fighting to protect. And if gender identity advocates had had their way, St. Johns’ schools would have been forced to violate students’ privacy and cooperate with high-risk, unproven medical treatments. There are no controlled, randomized studies showing gender affirmation treatments are helpful in the long term. The 11th Circuit has rightly allowed St. Johns’ schools to prioritize the well-being of its students over gender ideology.”

This was, as a number of commenters described it, a “common sense” decision. The distinction between the biological sexes has been apparent to every country and every culture for many a millennium, and the separation of bathrooms by biological sex for the sake of privacy was established long before the United States was even formally founded.

There are 40,000 students in the St. Johns County School District and 16 transgenders. Why does one student’s desire to use the opposite sex bathroom matter more than the privacy rights and welfare of all other students? The student was provided a private, safe, sex-neutral bathroom, a more than adequate compromise that also ensures the safety and privacy of all other students. Giving a student an option to use an alternative bathroom is no more a “walk of shame,” as the plaintiff and Judge Pryor characterized it, than giving a child with dyslexia the option of seeing a specialized reading instructor during the time other students attend a traditional language arts class.

Genesis 1:27 is clear: God made two biological sexes, male and female, and He designed them to be different but complementary to achieve both procreative and familial purposes. As a result of those differences, people want and need personal privacy. Most adults would cringe at the idea of being seen in a state of full or partial undress, but for children it is worse. For them, having to share a bathroom or a locker room with a person of the opposite sex isn’t just uncomfortable, it’s traumatizing and, as we’ve seen in Loudoun County and other school districts, potentially dangerous.

For some reason, the transgender ideology can’t seem to recognize or appreciate this basic human need, especially as it relates to the privacy and protection of women. And so the slippery slope is well underway. As Judge Lagoa warned (but which Judge Pryor dismissed out-of-hand even though it’s clearly happening), the mixing of biological sexes based on the demands of transgenders and “gender-fluid” people in private same-sex spaces has morphed from bathrooms to now locker rooms, overnight accommodations, shelters, prisons, and the athletic field. With each major push and each affirmation by a woke, virtue-signaling judge, they are succeeding in destroying the equal rights and Title IX amendments put in place for the benefit and protection of girls and women.

The Supreme Court needs to take up this issue and finally bring legal clarity and sanity back to both education and society at large.


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