Beverly Baldwin Martin

“ Demanding that the policy satisfy its privacy interests as to each plaintiff who brings an as-applied challenge would disregard intermediate scrutiny by demanding a perfect fit between the sex-based classification and the government interest at issue.
The school policy also substantially advances its objective to protect children from exposing their unclothed bodies to the opposite sex. Courts have long understood that the “special sense of privacy” that individuals hold in avoiding bodily exposure is heightened “in the presence of people of the other sex.” ”

“ And Adams argued the school discriminated by treating 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 never relied on the sole rationale on which the majority now rests its conclusion: that the school acts arbitrarily because it treats transgender students differently from each other and because it prefers older documents to newer ones. For all these reasons, the majority’s new rationale does no better than its old one. ”

“ But that evidence would not justify a sex-based classification. If voyeurism is equally problematic whether it occurs between children of the same or opposite sex, then separating bathrooms by sex would not advance any interest in combatting voyeurism. Only single-stall bathrooms could address that concern. Further, under intermediate scrutiny, an invidious stereotype about members of a suspect class cannot justify a discriminatory policy “even when some statistical support can be conjured up for the generalization.” ”

“ The Bathroom Policy Does Not Violate Title IX.
The majority no longer addresses Adams’s statutory challenge to the schools’ policy, but I explain why the policy is permissible. Title IX mandates that no person “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.” ”

“ So even if the majority were correct that “sex” was ambiguous, Title IX still would not prohibit the Board’s actions. Instead, the Board would lose the protection of the bathroom safe harbor only if the meaning of “sex” unambiguously did not turn on reproductive function.
For its part, the district court ruled that the Board violated Title IX for different but equally flawed reasons. It first ruled that the meaning of “sex” in Title IX was ambiguous because the statute did not define the term and dictionary definitions of “sex” were not “so universally clear” at the time. ”

“ It is undisputed that the School District does not inspect students’ anatomy before they use District bathrooms. The School District relies solely on the information provided by the students to enforce its bathroom policy, and the dissent has not pointed to any evidence to the contrary. Rather than accept the record, the dissent continues to push its reimagining of the facts, which even the School District did not advance. ”

“ The majority does not offer a meaningful way to distinguish this appeal from one that challenges sex-separated bathrooms and locker rooms. It only insists that the issue is not before it. But do not be fooled: future plaintiffs can still leverage the majority’s narrow view of privacy. Ultimately, if the privacy interest at stake is untethered from using the bathroom away from the opposite sex or from biological differences between the sexes, then no justification exists for separating bathrooms—or any related facility—by sex. ”

“ The School Board’s concerns about transgender students endangering restroom privacy are not borne out by the record. To satisfy the Fourteenth Amendment, the government’s justification for a gender classification “must be genuine, not hypothesized.” VMI, 518 U.S. at 533, 116 S. Ct. at 2275. While a rational basis standard of review “permits a court to hypothesize interests that might support [governmental gender] distinctions, ... heightened scrutiny limits the realm of justification to demonstrable reality.” ”

“ Adams’s sex is female, the State of Florida recognizes his sex as male. The federal government is also prepared to recognize Mr. Adams’s sex as male, if he seeks an updated passport. As the Supreme Court observed in Bostock, transgender individuals have “one sex identified at birth and another today.” 140 S. Ct. at 1746. Title IX and its regulations do not declare which sex should determine a transgender student’s restroom use. Thus, the language of § 106.33 does not insulate the School Board from Mr. Adams’s discrimination claim based on his transgender status. ”

“ The majority frames the issue incorrectly in at least two ways.
For one thing, the majority follows Adams in using the word “sex” as a synonym for “gender identity.” E.g., id. at 6 (“Mr. Adams amended his legal documents to reflect his male sex.”) . As Adams put it, “ [t] ransgender persons are people whose gender identity diverges from the sex they were assigned at birth,” and a “transgender boy’s sex is male (even though he was assigned the sex of female at birth) .” But the schools use “sex” in its ordinary, traditional sense, and they use “biological sex” as a synonym. ”

“ See Female, id. (“a human being of the sex which conceives and brings forth young; a woman or girl”) ; Male, id. (“belonging to the sex which begets young, or any division or group corresponding to it”) . The district court had no reason to conclude that the term was ambiguous.
The decision to resolve the purported ambiguity as applied to transgender students with Price Waterhouse and Glenn fares no better. Like the majority, the district court erred by assuming that “sex” could have different meanings as applied to transgender and non-transgender persons. ”

“ He explains that by defining “boy” and “girl” based on “biological sex,” or sex assigned at birth, the School Board divides restrooms based on a characteristic that “punishes transgender students and favors non-transgender students.” He further points out that the policy forces transgender students (and only transgender students) to choose between using a single-stall restroom in isolation from their peers or using a restroom that does not match their gender identity and causes them humiliation and insult. ”