Title VII SCOTUS Win Applied to Trans Student’s Claim
11th Circuit panel fi nds discrimination because of sex is discrimination in any setting
BY ARTHUR S. LEONARD
The potential scope of the Supreme
Court’s June 15 ruling in Bostock
v. Clayton County, which found that
sexual orientation and gender identity
employment discrimination claims are covered
by Title VII of the 1964 Civil Rights Act,
is vast, despite the narrow focus of the Justice
Neil Gorsuch’s decision.
An August 7 decision by the Atlanta-based
11th Circuit Court of Appeals extends the Bostock
ruling to equal protection claims made
under the 14th Amendment and specifi cally to
discrimination claims by students under Title
IX of the Education Amendments of 1972.
A three-judge circuit panel ruled 2-1 that the
St. Johns County, Florida, school board unlawfully
discriminated against a transgender high
school student by forbidding him from using the
boys’ restroom. The majority opinion by Judge
Beverly B. Martin invoked the Bostock decision
in concluding that Drew Adams’ claims should
be dealt with as sex discrimination claims that
receive the court’s heightened scrutiny under
the Equal Protection Clause and are clearly
covered by Title IX.
The Equal Protection Clause says that no
state shall “deny to any person within its jurisdiction
the equal protection of the laws.” Adopted
after the Civil War, the amendment was
intended to require the states to treat former
slaves as equal citizens in all their dealings
with the government, and authorized Congress
to enforce its requirements through legislation.
It was in the 1970s, in cases litigated by Ruth
Bader Ginsberg appearing as an attorney for
the American Civil Liberties Union, that the
Supreme Court began to apply the Equal Protection
Clause to sex discrimination claims.
Federal statutes prohibiting discrimination
by state and local governments, such as the
Title VII employment provisions and Title IX,
are specifi cally grounded in the 14th Amendment.
Title IX states. “”No person in the United
States shall, on the basis of sex, be excluded
from participation in, be denied the benefi ts of,
or be subject to discrimination under any educational
program or activity receiving federal
fi nancial assistance.”
When Drew Adams fi rst enrolled in the St.
Johns County schools, he was still offi cially living
as a girl, as indicated on his birth certifi -
cate. During eighth grade, he began to recognize
his male identity, eventually coming out to
his parents, receiving appropriate health care,
and transitioning in most respects to live as a
boy by the time he entered Nease High School
a year later. Still, under prevailing standards of
BETH STEPHENS/ PORTRAITSINC.COM
11th Circuit Court Judge Beverly B. Martin.
care, he had not undergone genital surgery.
Adams had new state government-issued
documents identifying him as male under his
preferred male name, although he hadn’t yet
obtained a federal passport. Teachers, administrators,
and fellow students used his male
name and treated him as a boy. For the fi rst
several weeks of high school, he used the boys’
restrooms without incident.
However, two girls saw him going into a boys’
restroom and complained to the administration.
Signifi cantly, no boys actually using the
bathroom had raised any objections. Still, the
school reacted by warning him he was not allowed
to use the boys’ restroom and threatening
disciplinary consequences if he did. He was
given “two choices,” wrote Judge Martin: “use
a single-stall, gender-neutral bathroom in the
school offi ce, or use the girls’ facilities.” Since
Adams was living and presenting as a boy, he
did not want to use the girls’ restroom, which
likely would have led to complaints from some
girls — who knows, maybe the same ones who
complained earlier. The bathroom in the school
offi ce was not convenient and using it stigmatized
him as well, Adams felt.
Negotiations between Adams’ parents and the
school proved futile, so he fi led suit, represented
by Lambda Legal. The school district’s position
was that a student’s sex for purposes of restroom
access was based on the documentation
presented when they fi rst enrolled in the school
district. The school was treating Adams as a
boy for all other purposes, but offi cials would
continue to rely on his original birth certifi cate
and his enrollment forms from years before.
This is not a new story. Transgender high
school students have been suing schools about
restroom access for years now, and have generally
been successful, at least at the trial court
level, and in some cases in circuit courts. The
CIVIL RIGHTS
federal district court in Florida agreed with
those prior court rulings, and the school district
appealed to the 11th Circuit, where the
case was pending when the Supreme Court decided
Bostock. In that ruling, the high court coincidentally
overruled an 11th Circuit decision
that Title VII does not apply to sexual orientation
discrimination claims.
The 11thCircuit, however, had several years
ago already recognized that gender identity discrimination
claims raise constitutional equal
protection issues. In 2011, in the case of Glenn
v. Brumby, the circuit anticipated the Supreme
Court by nine years, ruling that a transgender
librarian suffered an equal protection violation
when she was fi red by the Georgia Legislature’s
research service. There, the appeals court decided
that when an employer fi res somebody
because they are transitioning, they are fi ring
them because of their sex.
Consequently, even without the Bostock case
as a new precedent, the 11th Circuit panel already
was bound by a circuit precedent to require
the school district to justify its action, if
the court found that its action was discriminatory.
That was the big contested point. The
school district argued that it was not discriminating
against Adams, just requiring him to
respect the custom —protected by a Title IX
regulation — that requires boys and girls to
use separate facilities. The school district’s argument,
of course, is based on the contention
that Adams is a girl for this purpose. The district
also argued that its policy was necessary
to protect the privacy of boys. Noting that there
were more than a dozen trans students known
to the district, its attorneys also argued that it
was protecting the privacy of girls who did not
want “boys” in their restroom.
The school district even pushed a far-fetched
“gender fl uidity” argument, warning students
might claim that they could use any restroom
they wanted to at any time they were feeling a
particular gender identity. Needless to say, the
district offered no evidence that this would happen
— but this “scare” argument has been used
by other school districts as well.
The court noted a major inconsistency in
the district’s policy. If Adams had transitioned
while enrolled in another school district and
then transferred to St. Johns County schools
using his new birth certifi cate, driver’s license,
or other state-issued ID to register as a boy, he
would be entitled to use the boys’ restroom. So
pinning him down on his gender identity stated
when he fi rst enrolled years before was arbitrary
and not necessary to achieve an “impor-
➤ TITLE IX, continued on p.20
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