Drew Adams v. School Board of St. Johns County, Florida

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 18-13592

____________________

DREW ADAMS,

a minor, by and through his next friend and mother, Erica Adams

Kasper,

Plaintiff-Appellee,

versus

SCHOOL BOARD OF ST. JOHNS COUNTY, FLORIDA,

Defendant-Appellant,

TIM FORSON, et al.,

Defendants.

____________________

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2 Opinion of the Court 18-13592

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:17-cv-00739-TJC-JBT

____________________

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, ROSEN-

BAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and

BRASHER, Circuit Judges.

LAGOA, Circuit Judge, delivered the opinion of the Court, in which

WILLIAM PRYOR, Chief Judge, NEWSOM, BRANCH, GRANT, LUCK,

and BRASHER, joined.

LAGOA, Circuit Judge, filed a concurring opinion.

WILSON, Circuit Judge, filed a dissenting opinion.

JORDAN, Circuit Judge, filed a dissenting opinion, in which WILSON

and ROSENBAUM, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a dissenting opinion.

JILL PRYOR, Circuit Judge, filed a dissenting opinion, in which ROS-

ENBAUM, Circuit Judge, joined as to Parts I, II, III.A, III.B., III.D.,

and IV.

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18-13592 Opinion of the Court 3

LAGOA, Circuit Judge:

This case involves the unremarkable—and nearly univer-

sal—practice of separating school bathrooms based on biological

sex. This appeal requires us to determine whether separating the

use of male and female bathrooms in the public schools based on a

student’s biological sex violates (1) the Equal Protection Clause of

the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and (2)

Title IX of the Education Amendments Act of 1972, 20 U.S.C.

§ 1681 et seq. We hold that it does not—separating school bath-

rooms based on biological sex passes constitutional muster and

comports with Title IX.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-Appellant, the School Board of St. Johns County

(the “School Board”), is responsible for providing “proper attention

to health, safety, and other matters relating to the welfare of stu-

dents” within the St. Johns County School District (the “School

District”). Fla. Stat. § 1001.42(8)(a). The School Board maintains

and oversees the K-12 policies for the 40,000 students who attend

the thirty-six different schools within the School District. See gen-

erally id. § 1001.42. Of the 40,000 students attending schools within

the School District, around sixteen identify as transgender.

Plaintiff-Appellee, Drew Adams, is a transgender boy. This

means that Adams identifies as male, while Adams’s biological

sex—sex based on chromosomal structure and anatomy at birth—

is female. Adams entered the School District in the fourth grade as

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a biological female and identified as a female. At the end of eighth

grade, however, Adams began identifying and living as a boy. For

example, Adams dressed in boys’ clothing and wore a “chest

binder” to flatten breast tissue. Most pertinently for this appeal,

Adams adopted the male pronouns “he” and “him” and began us-

ing the male bathroom in public.

In August 2015, Adams entered ninth grade at Allen D.

Nease High School (“Nease”) within the School District. Nease

provides female, male, and sex-neutral bathrooms for its 2,450 stu-

dents. The communal female bathrooms have stalls, and the com-

munal male bathrooms have stalls and undivided urinals. In addi-

tion to performing bodily functions in the communal bathrooms,

students engage in other activities, like changing their clothes, in

those spaces. Single-stall, sex-neutral bathrooms are provided to

accommodate any student, including the approximately five

transgender students at Nease, who prefer not to use the bath-

rooms that correspond with their biological sex. The bathrooms

at Nease are ordinarily unsupervised.

The School Board, like many others, maintains a longstand-

ing, unwritten bathroom policy under which male students must

use the male bathroom and female students must use the female

bathroom. For purposes of this policy, the School Board distin-

guishes between boys and girls on the basis of biological sex—

which the School Board determines by reference to various docu-

ments, including birth certificates, that students submit when they

first enroll in the School District. The School Board does not accept

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18-13592 Opinion of the Court 5

updates to students’ enrollment documents to conform with their

gender identities.

According to the School Board, the bathroom policy ad-

dresses concerns about the privacy, safety, and welfare of students

pursuant to the School Board’s duties under the governing Florida

statute. In line with these concerns, the parties specified the fol-

lowing in their joint pretrial statement:

The parties stipulate that certain parents of students

and students in the St. Johns County School District

object to a policy or practice that would allow stu-

dents to use a bathroom that matches their gender

identity as opposed to their sex assigned at birth.

These individuals believe that such a practice would

violate the bodily privacy rights of students and raise

privacy, safety and welfare concerns.

In 2012, School District personnel began a comprehensive

review of LGBTQ1 issues affecting students. Indeed, the then-Di-

rector of Student Services for the School District attended, and sent

personnel to, national LGBTQ conferences to help inform the

School District about issues affecting the LGBTQ student commu-

nity. The Director conducted significant research on LGBTQ stu-

dent issues, met with LGBTQ student groups at schools through-

out the School District, and contacted school administrators out-

side the School District, as well as a local LGBTQ organization, to

1LGBTQ is an acronym for the phrase “lesbian, gay, bisexual, transgender,

and questioning (and/or queer).”

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“gather every bit of information” to “support [LGBTQ] children.”

The Director also convened an LGBTQ task force, which met with

“district administrators, . . . principals, . . . attorneys, . . . guidance

counselors, [and] mental health therapists” to hear “every perspec-

tive” on emerging LGBTQ issues.

The School District’s review of LGBTQ student issues cul-

minated in 2015 with the announcement of a set of “Guidelines for

LGBTQ students – Follow Best Practices” (the “Best Practices

Guidelines”). Under the Best Practices Guidelines, School District

personnel, upon request, address students consistent with their

gender identity pronouns. The guidelines also allow transgender

students to dress in accordance with their gender identities and

publicly express their gender identities. Finally, the guidelines for-

mally note that: “Transgender students will be given access to a

gender-neutral restroom and will not be required to use the re-

stroom corresponding to their biological sex.”

The School Board’s decision to maintain the longstanding

bathroom policy separating bathrooms based on biological sex,

while providing sex-neutral bathroom accommodations for

transgender students under the Best Practices Guidelines, was mo-

tivated, in part, by the issue of gender fluidity in which students

may switch between genders with which they identify. Both the

Best Practices Guidelines and the bathroom policy apply to all

schools with communal bathrooms in the School District, not only

to high schools like Nease.

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Because Adams is biologically female and first enrolled in

the School District as a female, Adams is identified as a female for

purposes of the bathroom policy. For the first few weeks of ninth

grade, Adams used the male bathrooms (in violation of the bath-

room policy) without incident. However, at some point during

this period, two unidentified students observed Adams using a

male bathroom and complained to school officials. The school

then informed Adams that, under the bathroom policy, Adams had

to use either the communal female bathrooms or the single-stall,

sex-neutral bathrooms. Adams took issue with that directive and,

with parental help, began petitioning the school to change its pol-

icy.

Adams continued the process of identifying as a male, in-

cluding amending government documents with the State of Flor-

ida. For example, shortly before receiving a driver’s license in the

fall of 2016, Adams submitted medical documents to the Florida

Department of Motor Vehicles to receive a male designation on

the license. And, in 2017, while this litigation was pending, Adams

obtained an amended birth certificate with a male designation.

Adams also began taking birth control to stop menstruation

and testosterone to appear more masculine and underwent a “dou-

ble-incision mastectomy” to remove breast tissue. Because Adams

was still just a teenager who had not yet reached the age of ma-

turity, Adams could not undergo additional surgeries to rework ex-

ternal genitalia. Thus, at all times relevant to this lawsuit, Adams

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possessed the reproductive anatomy Adams was born with—that

of a female.

On June 28, 2017, after Adams’s efforts to change the School

Board’s bathroom policy failed, Adams filed suit against the School

Board under 42 U.S.C. § 1983, alleging that its bathroom policy vi-

olated both the Equal Protection Clause and Title IX. After a three-

day bench trial, the district court ruled in Adams’s favor on both

counts. The district court enjoined the School Board from prohib-

iting Adams’s use of the male bathrooms and granted Adams

$1,000 in compensatory damages.

The School Board timely appealed the district court’s order.

Following oral argument, a divided panel of this Court affirmed the

district court over a dissent. Adams ex rel. Kesper v. Sch. Bd. of St.

Johns Cnty., 968 F.3d 1286, 1292 (11th Cir. 2020); id. at 1311 (Pryor,

C.J., dissenting). After a member of this Court withheld the man-

date, the panel majority sua sponte withdrew its initial opinion and

issued a revised opinion, again affirming the district court over a

revised dissent but on grounds that were neither substantively dis-

cussed in the initial panel opinion nor substantively made by any

party before the district court or this Court.2 Adams ex rel. Kesper

2Specifically, the revised opinion eschewed addressing Title IX. And, instead,

the revised opinion sua sponte framed Adams’s Equal Protection Clause claim

as a challenge to the School Board’s enrollment documents policy—i.e., the

means by which the School Board determines biological sex upon a student’s

entrance into the School District—and not as a challenge to the School Board’s

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18-13592 Opinion of the Court 9

bathroom policy—i.e., the policy separating the male and female bathrooms

by biological sex instead of transgender status or gender identity. But this case

has never been about the enrollment documents policy.

This was not the challenge advanced by Adams in the district court. Indeed,

Adams centered the district court litigation on the bathroom policy. For ex-

ample, in Adams’s amended complaint, Adams sought relief for “his exclu-

sion” and denial of “equal access to the boys’ restroom.” Adams specifically

challenged “[the School Board’s] policy of excluding transgender students

from the single-sex facilities that match their gender identity.” Then, in the

joint pretrial statement, Adams sought to recover damages for the harm Ad-

ams suffered “as a result of [the School Board’s] implementation of its discrim-

inatory restroom policy.” In Adams’s proposed findings of fact and conclu-

sions of law, Adams defined the School Board’s purported discriminatory bath-

room policy as “[the School Board’s] policy, custom, or usage, as these terms

are used in 42 U.S.C. § 1983, barring transgender students from the restrooms

consistent with their gender identity.” And because Adams claimed that the

policy “treated [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

sought to have the district court enjoin the School Board from enforcing a

policy “that denies transgender students access to and use of restrooms that

match a student’s gender identity.”

Ultimately, Adams maintained, until this en banc proceeding after two prior

opinions had been vacated, that this lawsuit was about allowing transgender

students to access bathroom facilities that match their gender identities, not

revising the means by which the School Board determines biological sex.

While Adams now tries to raise a new claim that the enrollment documents

policy violates the Equal Protection Clause because it creates an “arbitrary sex-

based distinction,” Adams cannot amend the complaint by arguments made

in an appellate brief. Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312,

1315 (11th Cir. 2004) (explaining that a plaintiff may not amend the complaint

by argument in an appellate brief).

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v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1303–04 (11th Cir. 2021);

id. at 1321 (Pryor, C.J., dissenting). We then granted the School

Board’s petition for rehearing en banc and vacated the panel’s re-

vised opinion. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty.,

9 F.4th 1369, 1372 (11th Cir. 2021).

Pursuant to our en banc briefing notice to the parties, on ap-

peal the only questions before this Court are:

1) Does the School District’s policy of assigning bath-

rooms based on sex violate the Equal Protection

Clause of the Constitution? and

2) Does the School District’s policy of assigning bath-

rooms based on sex violate Title IX?

II. STANDARD OF REVIEW

“After a bench trial, we review the district court’s conclu-

sions of law de novo and the district court’s factual findings for

clear error.” Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223,

1230 (11th Cir. 2009). A factual finding is clearly erroneous when

the reviewing court “is left with the definite and firm conviction

that a mistake has been committed.” Morrissette–Brown v. Mobile

Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) (quoting

Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th

Cir. 2005)).

III. ANALYSIS

On appeal, Adams argues that the School Board’s bathroom

policy violates both the Equal Protection Clause and Title IX. At

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its core, Adams’s claim is relatively straightforward. According to

Adams, the School Board’s bathroom policy facially discriminates

between males and females. Adams, who identifies as a male, ar-

gues that the policy violates Adams’s rights because, as a

transgender student, Adams cannot use the bathroom that corre-

sponds to the sex with which Adams identifies. Which is to say,

Adams argues that by facially discriminating between the two

sexes, the School Board’s bathroom policy also necessarily discrim-

inates against transgender students. We disagree with Adams’s

theory that separation of bathrooms on the basis of biological sex

necessarily discriminates against transgender students.3

3 Adams also argues that the appeal of the district court’s order should be clas-

sified as an as-applied challenge to the School Board’s bathroom policy limited

to Adams’s particular circumstances. But that does not help in our resolution

of this appeal because “classifying a lawsuit as facial or as-applied . . . does not

speak at all to the substantive rule of law necessary to establish a constitutional

violation.” Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019). Indeed, an as-

applied challenge merely “affects the extent to which” a plaintiff must demon-

strate “the invalidity of the challenged law” or constitutional violation and

“the corresponding ‘breadth of the remedy.’” Id. (quoting Citizens United v.

FEC, 558 U.S. 310, 331 (2010)). But an alleged violation of one individual’s

constitutional rights under the Equal Protection Clause would necessarily con-

stitute a violation of the Equal Protection Clause and the Constitution at large,

regardless of the individually-applied remedy. Further, as we discuss below,

equating “sex” to “gender identity” or “transgender status” under Title IX, as

Adams would have us do as a matter of statutory interpretation, would touch

upon the interests of all Americans—not just Adams—who are students, as

well as their parents or guardians, at institutions subject to the statute. We

therefore do not find merit in Adams’s attempt to cabin the lawsuit to Adams’s

particular circumstances.

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Indeed, when we apply first principles of constitutional and

statutory interpretation, this appeal largely resolves itself. The

Equal Protection Clause claim must fail because, as to the sex dis-

crimination claim, the bathroom policy clears the hurdle of inter-

mediate scrutiny and because the bathroom policy does not dis-

criminate against transgender students. The Title IX claim must

fail because Title IX allows schools to separate bathrooms by bio-

logical sex. We now begin our full analysis with the Equal Protec-

tion Clause and end with Title IX.4

A. The Bathroom Policy Does Not Violate the Equal Protec-

tion Clause

The Equal Protection Clause provides that no state shall

“deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection

Clause is “essentially a direction that all persons similarly situated

should be treated alike,” City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985), and “simply keeps governmental deci-

sionmakers from treating differently persons who are in all relevant

respects alike,” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

There has been a long tradition in this country of separating

sexes in some, but not all, circumstances—and public bathrooms

are likely the most frequently encountered example. Indeed, the

universality of that practice is precisely what made Justice

4 For purposes of this opinion, unless otherwise indicated, our references to

“the dissent” in this opinion refer to Judge Jill Pryor’s dissent.

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Thurgood Marshall’s statement—“[a] sign that says ‘men only’

looks very different on a bathroom door than a courthouse

door”—so pithy. City of Cleburne, 473 U.S. at 468–69 (Marshall,

J., concurring in the judgment in part and dissenting in part). Of

course, not all sex-based classifications, no matter how longstand-

ing, satisfy the mandate of the Equal Protection Clause. And it is

well settled that when it comes to sex-based classifications, a policy

will pass constitutional muster only if it satisfies intermediate scru-

tiny. See United States v. Virginia, 518 U.S. 515, 533 (1996). To

satisfy intermediate scrutiny, the government must show “that the

classification serves ‘important governmental objectives and that

the discriminatory means employed’ are ‘substantially related to

the achievement of those objectives.’” Miss. Univ. for Women v.

Hogan, 458 U.S. 718, 724 (1982) (quoting Wengler v. Druggists

Mut. Ins. Co., 446 U.S. 142, 150 (1980)).

For a governmental objective to be important, it cannot

“rely on overbroad generalizations about the different talents, ca-

pacities, or preferences of males and females.” Virginia, 518 U.S. at

533. For a policy to be substantially related to an important gov-

ernmental objective, there must be “enough of a fit between

the . . . [policy] and its asserted justification.” Danskine v. Mia.

Dade Fire Dep’t, 253 F.3d 1288, 1299 (11th Cir. 2001). But the

Equal Protection Clause does not demand a perfect fit between

means and ends when it comes to sex. See Nguyen v. INS, 533 U.S.

53, 70 (2001) (“None of our gender-based classification equal pro-

tection cases have required that the [policy] under consideration

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must be capable of achieving its ultimate objective in every in-

stance.”); see also Eng’g Contractors Ass’n of S. Fla. Inc. v. Metro

Dade County, 122 F.3d 895, 929 (11th Cir. 1997) (“[U]nder interme-

diate scrutiny, a gender-conscious program need not closely tie its

numerical goals to the proportion of qualified women in the mar-

ket.”).

In the instant appeal, Adams argues that the bathroom pol-

icy unlawfully discriminates on both the basis of sex and

transgender status. We address both of Adams’s arguments in turn

and hold that there has been no unlawful discrimination.

1. The Bathroom Policy Does Not Unlawfully Discriminate

on the Basis of Sex

The School Board’s bathroom policy requires “biological

boys” and “biological girls”—in reference to their sex determined

at birth—to use either bathrooms that correspond to their biologi-

cal sex or sex-neutral bathrooms. This is a sex-based classification.

Adams challenges the policy’s requirement that Adams must either

use the female bathrooms—which correspond with Adams’s bio-

logical sex—or the sex-neutral bathrooms. Simply put, Adams

seeks access to the male bathrooms, which correspond with the

gender Adams identifies with.

Before reaching the merits of Adams’s argument and the

constitutional question presented in this case, we begin with one

prefatory note: the role that schools have in setting policies for stu-

dents. As the Supreme Court has recognized, constitutional rights,

including “Fourteenth Amendment rights, are different in public

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schools than elsewhere” because of “the schools’ custodial and tu-

telary responsibility for children.” Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 656 (1995). Schools operate in loco parentis to stu-

dents and are “permit[ed] a degree of supervision and control that

could not be exercised over free adults.” Id. at 655. This is because,

“in a public school environment[,] . . . the State is responsible for

maintaining discipline, health, and safety.” Bd. of Educ. v. Earls,

536 U.S. 822, 830 (2002).

Indeed, schools’ responsibilities are so great that they can be

held liable for their failures to protect students from sexual assault

and harassment. See, e.g., Miami-Dade Cnty. Sch. Bd. v. A.N., 905

So. 2d 203, 204–05 (Fla. Dist. Ct. App. 2005) (upholding a jury ver-

dict that found a school to be negligent and thus liable for failure

to protect a student from sexual assault by another student in the

bathroom); see also Williams v. Bd. of Regents, 477 F.3d 1282,

1288–91 (11th Cir. 2007) (reversing a district court’s dismissal of a

Title IX claim against the University of Georgia alleging gang rape

by a group of athletes in a university dormitory). Given schools’

responsibilities, the Supreme Court has afforded deference to their

decisions even when examining certain constitutional issues. See,

e.g., Acton, 515 U.S. at 665 (Fourth Amendment); Morse v. Freder-

ick, 551 U.S. 393, 403–08 (2007) (First Amendment); Ingraham v.

Wright, 430 U.S. 651, 671 (1977) (Eighth Amendment).

None of that, of course, is to say that schools have carte

blanche. It is to say, though, that when school authorities have

prudently assessed and addressed an issue that affects student

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welfare, we should pay attention. Just so here. In this case, the

School Board has gone to great lengths—as the district court itself

acknowledged—to accommodate LGBTQ students:

Beginning in 2012, the (now retired) Director of Stu-

dent Services worked with LGBTQ students, at-

tended and sent staff to LGBTQ conferences, and re-

searched school policies in other school districts in

Florida and elsewhere to educate herself and the

School District about emerging LGBTQ issues. She

formed a task force which consulted with district ad-

ministrators, principals, attorneys, guidance counse-

lors, mental health professionals, parents, students,

members of the public, and LGBTQ groups in St.

Johns County and elsewhere. The result was a set of

Best Practices Guidelines adopted by the School Su-

perintendent’s Executive Cabinet and introduced to

school administrators in September 2015. . . .

Under the Best Practices Guidelines, upon request by

a student or parent, students should be addressed

with the name and gender pronouns corresponding

with the student’s consistently asserted gender iden-

tity; school records will be updated upon receipt of a

court order to reflect a transgender student’s name

and gender; unofficial school records will use a

transgender student’s chosen name even without a

court order; transgender students are allowed to dress

in accordance with their gender identity; students are

permitted to publicly express their gender identity;

and the school will not unnecessarily disclose a

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student’s transgender status to others. The Best Prac-

tices Guidelines also provide that “[t]ransgender stu-

dents will be given access to a gender-neutral re-

stroom and will not be required to use the restroom

corresponding to their biological sex.”

(second alteration in original) (citations omitted).

Thus, after completing this process and as part of its Best

Practices Guidelines, the School Board decided to maintain its

bathroom policy that separates bathrooms on the basis of biologi-

cal sex while providing accommodative sex-neutral bathrooms.

The School Board opted to maintain this policy also after taking

into account the complex issues presented by the notion of gender

fluidity.

Ultimately, the School Board believes its bathroom policy is

necessary to ensure the privacy and overall welfare of its entire stu-

dent body under the governing Florida statute. We will not insert

ourselves into the School Board’s ongoing development of policies

to accommodate students struggling with gender identity issues—

unless, of course, the School Board’s policies are unconstitutional,

an issue which we now address.

Turning to the constitutional question, because the policy

that Adams challenges classifies on the basis of biological sex, it is

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18 Opinion of the Court 18-13592

subject to intermediate scrutiny.5 To satisfy intermediate scrutiny,

the bathroom policy must (1) advance an important governmental

objective and (2) be substantially related to that objective. Miss.

Univ. for Women, 458 U.S. at 724. The bathroom policy clears

both hurdles because the policy advances the important govern-

mental objective of protecting students’ privacy in school bath-

rooms and does so in a manner substantially related to that objec-

tive.6

5 The dissent separately asserts that intermediate scrutiny applies on the

ground that there is “no doubt that Adams, as a transgender individual, is a

member of a quasi-suspect class.” Jill Pryor Dis. Op. at 38. We have two re-

sponses. First, the dissent reaches this conclusion through a selective reading

of the record, citing to exhibits and testimony where it sees fit. But the dissent

fails to acknowledge that the district court did not address the issue, expressly

stating that it had “no occasion to engage in the further analysis” as to whether

“transgender people are a quasi-suspect class, deserving of heightened scrutiny

per se.” Like the district court, we find no need to address the issue, given our

conclusion that intermediate scrutiny applies, in any event. Second, and con-

trary to the dissent’s assertion, we have grave “doubt” that transgender per-

sons constitute a quasi-suspect class. Indeed, the Supreme Court has rarely

deemed a group a quasi-suspect class. See, e.g., City of Cleburne, 473 U.S. at

442–46.

6 Although we do not need to address whether Adams is “similarly situated”

to biological boys in the School District for purposes of reviewing the bath-

room policy under the Equal Protection Clause in the first instance, we note

that there are serious questions as to whether Adams would meet this require-

ment. See City of Cleburne, 473 U.S. at 439. The promise of equal protection

is limited to “keep[ing] governmental decisionmakers from treating differently

persons who are in all relevant respects alike.” Nordlinger, 505 U.S. at 10.

When it comes to the bathroom policy, biological sex is the “relevant

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respect[],” id., with respect to which persons must be “similarly situated,” City

of Cleburne, 473 U.S. at 439, because biological sex is the sole characteristic on

which the bathroom policy and the privacy interests guiding the bathroom

policy are based. And biological sex also is the driving force behind the Su-

preme Court’s sex-discrimination jurisprudence. See, e.g., Nguyen, 533 U.S.

at 73 (“The difference between men and women in relation to the birth pro-

cess is a real one, and the principle of equal protection does not forbid Con-

gress to address the problem at hand in a manner specific [to men and

women].”); Virginia, 518 U.S. at 533 (“Physical differences between men and

women, however, are enduring: ‘[T]he two sexes are not fungible . . . .’” (first

alteration in original) (quoting Ballard v. United States, 329 U.S. 187, 193

(1946))); Frontiero, 411 U.S. at 686 (“[S]ex, like race and national origin, is an

immutable characteristic determined solely by the accident of birth.”). As the

Supreme Court has made clear: “To fail to acknowledge even our most basic

biological differences . . . risks making the guarantee of equal protection su-

perficial, and so disserving it.” Nguyen, 533 U.S. at 73.

Adams claims to be similarly situated to biological boys in the School District

for purposes of the bathroom policy, even though Adams is not biologically

male—the only characteristic on which the policy is based. Throughout the

pendency of this case, Adams remained both biologically and anatomically

identical to biological females—not males. Thus, in prohibiting Adams from

using the male bathrooms, it can be argued that the School Board did not

“treat[] differently persons who are in all relevant respects alike” for purposes

of the Equal Protection Clause. Nordlinger, 505 U.S. at 10.

To argue otherwise, the dissent, like the district court, must assert that

transgender status and gender identity are equivalent to biological sex. In-

deed, this forms the foundation of the dissent’s attempt to frame this case not

as a case about the constitutionality and legality of separating bathrooms based

on biological sex but rather as a case about the purported unlawfulness of ex-

cluding Adams—who attended school as a biological female—from using the

male bathroom because, as the dissent claims, Adams is a boy for purposes of

the bathroom policy. But such an assertion is contrary to the Supreme Court’s

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20 Opinion of the Court 18-13592

The protection of students’ privacy interests in using the

bathroom away from the opposite sex and in shielding their bodies

from the opposite sex is obviously an important governmental ob-

jective. Indeed, the district court “agree[d] that the School Board

has a legitimate interest in protecting student privacy, which ex-

tends to bathrooms.” Understanding why is not difficult—school-

age children “are still developing, both emotionally and physi-

cally.” See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 636

(4th Cir. 2020) (Niemeyer, J., dissenting) (“[A]ll individuals possess

a privacy interest when using restrooms or other spaces in which

they remove clothes and engage in personal hygiene, and this pri-

vacy interest is heightened when persons of the opposite sex are

reliance on physiological and biological differences between men and women

in its sex-discrimination decisions, which therefore raises serious questions

about Adams’s similarly situated status for purposes of the bathroom policy

under review. Such an assertion also is undercut by the dissent’s refusal to

engage the issue of gender fluidity—i.e., the practice, which the dissent

acknowledges, in which some individuals claim to change gender identities

associated with the male and female sexes and thereby treat sex as a mutable

characteristic. Jill Pryor Dis. Op. at 63 (“This case has no bearing on the ques-

tion how to assign gender fluid individuals to sex-separated bathrooms.”). But

see Frontiero, 411 U.S. at 686 (“[S]ex, like race and national origin, is an im-

mutable characteristic determined solely by the accident of birth.”). Such an

assertion is further undercut by the dissent’s attempt to categorize transgender

persons as members of a quasi-suspect class, which necessarily entails treating

transgender persons as distinct from the sexes with which they identify. Jill

Pryor Dis. Op. at 40-41. Nevertheless, as the opinion concludes, the bathroom

policy passes constitutional muster regardless of whether Adams is similarly

situated to biological boys for purposes of the bathroom policy because the

policy’s sex-based classification satisfies intermediate scrutiny.

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18-13592 Opinion of the Court 21

present. Indeed, this privacy interest is heightened yet further

when children use communal restrooms . . . .”). And even the

more generally acceptable notion that the protection of individual

privacy will occasionally require some segregation between the

sexes is beyond doubt—as then-Professor Ruth Bader Ginsburg

noted, “[s]eparate places to disrobe, sleep, [and] perform personal

bodily functions are permitted, in some situations required, by re-

gard for individual privacy.” Ruth Bader Ginsburg, The Fear of the

Equal Rights Amendment, Wash. Post, Apr. 7, 1975, at A21 (em-

phasis added).

It is no surprise, then, that the privacy afforded by sex-sepa-

rated bathrooms has been widely recognized throughout Ameri-

can history and jurisprudence. In fact, “sex-separation in bath-

rooms dates back to ancient times, and, in the United States, pre-

ceded the nation’s founding.” W. Burlette Carter, Sexism in the

“Bathroom Debates”: How Bathrooms Really Became Separated

by Sex, 37 Yale L. & Pol’y Rev. 227, 229 (2019). The Supreme Court

acknowledged this when it stated that admitting women to the Vir-

ginia Military Institute for the first time “would undoubtedly re-

quire alterations necessary to afford members of each sex privacy

from the other sex in living arrangements.” Virginia, 518 U.S. at

550 n.19. So, too, have our sister circuits. See, e.g., Chaney v.

Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010) (“[T]he

law tolerates same-sex restrooms or same-sex dressing rooms, but

not white-only rooms, to accommodate privacy needs.”); Faulkner

v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (“[Society has given its]

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22 Opinion of the Court 18-13592

undisputed approval of separate public rest rooms for men and

women based on privacy concerns. The need for privacy justifies

separation and the differences between the genders demand a facil-

ity for each gender that is different.”); see also Grimm, 972 F.3d at

634 (Niemeyer, J., dissenting) (“In light of the privacy interests that

arise from the physical differences between the sexes, it has been

commonplace and universally accepted—across societies and

throughout history—to separate on the basis of sex those public

restrooms, locker rooms, and shower facilities that are designed to

be used by multiple people at a time.”).

Moreover, courts have long found a privacy interest in

shielding one’s body from the opposite sex in a variety of legal con-

texts. E.g., Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993)

(recognizing a “constitutional right to bodily privacy because most

people have ‘a special sense of privacy in their genitals, and invol-

untary exposure of them in the presence of people of the other sex

may be especially demeaning and humiliating’” (quoting Lee v.

Downs, 641 F.2d 1117, 1119 (4th Cir. 1981))); Harris v. Miller, 818

F.3d 49, 59 (2d Cir. 2016); Brannum v. Overton Cnty. Sch. Bd., 516

F.3d 489, 494–95 (6th Cir. 2008); Canedy v. Boardman, 16 F.3d 183,

185 (7th Cir. 1994); Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d

1135, 1141 (9th Cir. 2011) (en banc).

Having established that the School Board has an important

governmental objective in protecting students’ privacy interests in

school bathrooms, we must turn to whether the bathroom policy

is substantially related to that objective. Miss. Univ. for Women,

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18-13592 Opinion of the Court 23

458 U.S. at 724. Intermediate scrutiny is satisfied when a policy

“has a close and substantial bearing on” the governmental objec-

tive in question. Nguyen, 533 U.S. at 70. The School Board’s bath-

room 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. Therefore, the School Board’s

bathroom policy satisfies intermediate scrutiny.

The district court avoided this conclusion only by miscon-

struing the privacy interests at issue and the bathroom policy em-

ployed. The district court found that “allowing transgender stu-

dents to use the restrooms that match their gender identity does

not affect the privacy protections already in place.” In the district

court’s eyes, this was because “Adams enters a stall, closes the

door, relieves himself, comes out of the stall, washes his hands, and

leaves” the male bathroom. The district court discounted the pri-

vacy interests at play by claiming that “Adams has encountered no

problems using men’s restrooms in public places, and there were

no reports of problems from any boys or boys’ parents during the

six weeks . . . when Adams used the boys’ restrooms.” Thus, the

district court found “the School Board’s concerns about privacy” to

be “only conjectural.”

But the district court’s contentions, which the dissent, Ad-

ams, and many amici echo, minimize the undisputed fact that, at

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24 Opinion of the Court 18-13592

Nease, students’ use of the sex-separated bathrooms is not confined

to individual stalls, e.g., students change in the bathrooms and, in

the male bathrooms, use undivided urinals. These contentions also

ignore that the privacy interests, which animated the School

Board’s decision to implement the policy, are sex-specific privacy

interests. After all, only sex-specific interests could justify a sex-

specific policy. The privacy interests hinge on using the bathroom

away from the opposite sex and shielding one’s body from the op-

posite sex, not using the bathroom in privacy. Were it the latter,

then only single-stall, sex-neutral bathrooms would pass constitu-

tional muster. But that is not the law. Nor is the law predicated

on “problems” or “reports of problems” from students or their par-

ents when it comes to the validity of sex-separated bathrooms (alt-

hough the record reflects that two students did, in fact, complain

to the school and that—as stipulated by the parties—parents and

students within the School District objected to a policy that would

allow students to use the bathroom that matches their gender iden-

tity, instead of their biological sex, out of privacy, safety, and wel-

fare concerns).

The sex-specific privacy interests for all students in the sex-

separated bathrooms at Nease attach once the doorways to those

bathrooms swing open. The privacy interests are not confined to

the individual stalls in those bathrooms. In reaching the contrary

conclusion, the district court erred by misconstruing the privacy

interests at issue, minimizing the factual and practical realities of

how the sex-separated bathrooms operate, and discounting the

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parties’ stipulation that students and parents objected to any bath-

room policy that would commingle the sexes out of privacy con-

cerns, among others. Cf. Christian Legal Soc. Chapter of the Univ.

of California, Hastings Coll. of the L. v. Martinez, 561 U.S. 661,

677–78 (2010) (“[F]actual stipulations are ‘formal concessions . . .

that have the effect of withdrawing a fact from issue and dispensing

wholly with the need for proof of the fact.’” (second alteration in

original) (quoting 2 K. Broun, McCormick on Evidence § 254, at

181 (6th ed. 2006))).

The dissent repeats the district court’s mistakes. Of particu-

lar note, in asserting that the School Board only provided “specula-

tive” evidence in support of linking the bathroom policy to the pro-

tection of students’ privacy interests, the dissent discounts the par-

ties’ stipulation that parents and students within the School District

objected to a bathroom policy that commingled the sexes based on

privacy concerns, among others. Jill Pryor Dis. Op. at 45, 52 n.22.

The dissent equates concerns about privacy in the bathroom with

unlawful complaints about racial segregation. Id. at 52 n.22, 64–65.

But that is a false equivalence. As explained above, it is well estab-

lished that individuals enjoy protection of their privacy interests in

the bathroom, so concerns about privacy in the bathroom are le-

gitimate concerns. In contrast, it is well established that racially

segregating schools is unconstitutional, so complaints about ra-

cially integrating schools are illegitimate complaints. Brown v. Bd.

of Educ., 347 U.S. 483, 495 (1954). Only by conflating legitimate

concerns about privacy with illegitimate, and unconstitutional,

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26 Opinion of the Court 18-13592

complaints about racial integration is the dissent able to discount

the parties’ binding stipulation and claim that the School Board’s

bathroom policy, which directly advances the important govern-

mental objective of protecting students’ privacy interests in the

bathroom, fails intermediate scrutiny.

Finally, we turn to the dissent’s contention that, despite all

indications to the contrary, this case is not a case about “the legality

of separating bathrooms by sex,” which is primarily advanced by

Judge Jill Pryor’s dissent but also is discussed in Judge Jordan’s dis-

sent. Jill Pryor Dis. Op. at 2; Jordan Dis. Op. at 11–12. As such, the

dissent claims that this case is about the exclusion of Adams, as “a

boy,” from the male bathrooms in which the School Board restricts

access to “biological boys.”

The dissent’s argument relies on a misreading of the record

and, in fact, contradicts the dissent’s own analysis. The district

court explained that Adams “is transgender, meaning he ‘consist-

ently, persistently, and insistently’ identifies as a boy, a gender that

is different than the sex he was assigned at birth (female).” In its

analysis of the Equal Protection Clause claim, the district court

stated that “[t]he undisputed evidence is that [Adams] is a

transgender boy and wants access to use the boys’ restroom.” (Em-

phasis added). And, in concluding that the bathroom policy vio-

lated the Equal Protection Clause, the district court explained that

“[t]here is no evidence to suggest that [Adams’s] identity as a boy

is any less consistent, persistent, and insistent than any other boy.

Permitting [Adams] to use the boys’ restroom will not integrate the

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18-13592 Opinion of the Court 27

restrooms between the sexes.” (Emphasis added). In holding the

bathroom policy unconstitutional, the district court never made a

finding that Adams is a “biological boy,” as the dissent claims,

which is the classification that the School Board uses to restrict ac-

cess to the male bathrooms and the classification that Adams is

challenging. Jill Pryor Dis. Op. at 29 n.10. The district court looked

to Adams’s gender identity—not Adams’s biological sex—for pur-

poses of evaluating the bathroom policy. And even the dissent

acknowledges, as it must, that gender identity is different from bi-

ological sex. Id. at 32 (citing the district court’s order to explain

“that ‘transgender’ persons ‘consistently, persistently, and insist-

ently identif[y] as a gender different [from] the sex they were as-

signed at birth’”).

Thus, despite the dissent’s suggestion, the district court did

not make a finding equating gender identity as akin to biological

sex. Nor could the district court have made such a finding that

would have legal significance. To do so would refute the Supreme

Court’s longstanding recognition that “sex, like race and national

origin, is an immutable characteristic determined solely by the ac-

cident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973)

(plurality opinion); see also Immutable, Oxford English Dictionary

(2d ed. 1989) (“Not mutable; not subject to or susceptible of

change; unchangeable, unalterable, changeless.”). Regardless of

Adams’s genuinely held belief about gender identity—which is not

at issue—Adams’s challenge to the bathroom policy revolves

around whether Adams, who was “determined solely by the

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28 Opinion of the Court 18-13592

accident of birth” to be a biological female—is allowed access to

bathrooms reserved for those who were “determined solely by the

accident of birth” to be biologically male. Thus, we are unper-

suaded by the dissent’s argument that the district court could make

any factual finding (that would not constitute clear error) to change

an individual’s immutable characteristic of biological sex, just as

the district court could not make a factual finding to change some-

one’s immutable characteristic of race, national origin, or even age

for that matter. Simply put, and contrary to the dissent’s claims,

this is a case about the constitutionality and legality of separating

bathrooms by biological sex because it involves an individual of

one sex seeking access to the bathrooms reserved for those of the

opposite sex. Adams’s gender identity is thus not dispositive for

our adjudication of Adams’s equal protection claim.

In sum, the bathroom policy does not unlawfully discrimi-

nate on the basis of biological sex.

2. The Bathroom Policy Does Not Discriminate Against

Transgender Students

We now turn to whether the School Board’s policy, which

does not unlawfully discriminate on the basis of sex, discriminates

against transgender students. In finding a violation of the Equal

Protection Clause, the district court never properly conducted the

requisite intermediate scrutiny analysis and, instead, concluded

that “although the policy treats most boys and girls the same, it

treats Adams differently because, as a transgender boy, he does not

act in conformity with the sex-based stereotypes associated with”

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18-13592 Opinion of the Court 29

biological sex. There are two flaws in the district court’s conclu-

sion.

First, the bathroom policy facially classifies based on biolog-

ical sex—not transgender status or gender identity. Transgender

status and gender identity are wholly absent from the bathroom

policy’s classification. And both sides of the classification—biolog-

ical males and biological females—include transgender students.

To say that the bathroom policy singles out transgender students

mischaracterizes how the policy operates.

Both Adams and the dissent rely on Bostock v. Clayton

County, 140 S. Ct. 1731 (2020), to advance this faulty reasoning. Jill

Pryor Dis. Op. at 35–37. Bostock involved employment discrimi-

nation under Title VII of the Civil Rights Act of 1964, § 701 et seq.,

as amended, 42 U.S.C. § 2000e et seq.—specifically, various em-

ployers’ decisions to fire employees based solely on their sexual ori-

entations or gender identities. Id. at 1737–38. As a preliminary

matter, the Supreme Court expressly declined to address the issue

of sex-separated bathrooms and locker rooms, stating:

Under Title VII, . . . we do not purport to address

bathrooms, locker rooms, or anything else of the

kind. The only question before us is whether an em-

ployer who fires someone simply for being homosex-

ual or transgender has discharged or otherwise dis-

criminated against that individual “because of such in-

dividual’s sex.”

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30 Opinion of the Court 18-13592

Id. at 1753. And the instant appeal is about schools and children—

and the school is not the workplace. See, e.g., Davis v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999) (“Courts, moreover,

must bear in mind that schools are unlike the adult workplace.”);

id. at 675 (Kennedy, J., dissenting) (noting the “differences between

children and adults, peers and teachers, schools and workplaces”

and that “schools are not workplaces and children are not adults”).

But even holding those preliminary points aside, Bostock

does not resolve the issue before us. While Bostock held that “dis-

crimination based on homosexuality or transgender status neces-

sarily entails discrimination based on sex,” 140 S. Ct. at 1747, that

statement is not in question in this appeal. This appeal centers on

the converse of that statement—whether discrimination based on

biological sex necessarily entails discrimination based on

transgender status. It does not—a policy can lawfully classify on

the basis of biological sex without unlawfully discriminating on the

basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. In-

deed, while the bathroom policy at issue classifies students on the

basis of biological sex, it does not facially discriminate on the basis

of transgender status. Because the bathroom policy divides stu-

dents into two groups, both of which include transgender students,

there is a “lack of identity” between the policy and transgender sta-

tus, as the bathroom options are “equivalent to th[ose] provided

[to] all” students of the same biological sex. See Geduldig v. Aiello,

417 U.S. 484, 496–97 & n.20 (1974); see also Bray v. Alexandria

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18-13592 Opinion of the Court 31

Women’s Health Clinic, 506 U.S. 263, 271 (1993) (reaffirming this

reasoning).

Our conclusion that there is a “lack of identity” between the

bathroom policy and transgender status is informed by the Su-

preme Court’s reasoning in Geduldig. In that case, the Supreme

Court held that a state insurance program that excluded coverage

for certain pregnancy-related disabilities did not classify on the ba-

sis of sex. Geduldig, 417 U.S. at 486, 496–97. Because the insurance

program created two groups—a group that contained only females

and a group that contained males and females—there was a “lack

of identity” between the exclusion of those female-related disabili-

ties from coverage and discrimination on the basis of being female

since “[t]he fiscal and actuarial benefits of the program . . . accrue[d]

to members of both sexes.” Id. at 496 n.20. Like the insurance

program in Geduldig, the School Board’s bathroom policy does not

classify students based on transgender status because a “lack of

identity” exists between transgender status and a policy that divides

students into biological male and biological female groups—both

of which can inherently contain transgender students—for pur-

poses of separating the male and female bathrooms by biological

sex.

Second, the contention that the School Board’s bathroom

policy relied on impermissible stereotypes associated with Adams’s

transgender status is wrong. The bathroom policy does not de-

pend in any way on how students act or identify. The bathroom

policy separates bathrooms based on biological sex, which is not a

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32 Opinion of the Court 18-13592

stereotype. As this opinion has explained, the Supreme Court has

repeatedly recognized the biological differences between the sexes

by grounding its sex-discrimination jurisprudence on such differ-

ences. See, e.g., Nguyen, 533 U.S. at 73 (“The difference between

men and women in relation to the birth process is a real one.”);

Virginia, 518 U.S. at 533 (“Physical differences between men and

women, however, are enduring: ‘[T]he two sexes are not fungible

. . . .’” (first alteration in original) (quoting Ballard v. United States,

329 U.S. 187, 193 (1946))). And the biological differences between

males and females are the reasons intermediate scrutiny applies in

sex-discrimination cases in the first place. See Frontiero, 411 U.S.

at 686 (“[S]ince sex, like race and national origin, is an immutable

characteristic determined solely by the accident of birth, the impo-

sition of special disabilities upon the members of a particular sex

because of their sex would seem to violate ‘the basic concept of our

system that legal burdens should bear some relationship to individ-

ual responsibility.’” (quoting Weber v. Aetna Cas. & Sur. Co., 406

U.S. 164, 175 (1972))). To say that the bathroom policy relies on

impermissible stereotypes because it is based on the biological dif-

ferences between males and females is incorrect. See Nguyen, 533

U.S. at 73 (“Mechanistic classification of all our differences as stere-

otypes would operate to obscure those misconceptions and preju-

dices that are real.”).

At most, Adams’s challenge amounts to a claim that the

bathroom policy has a disparate impact on the transgender stu-

dents in the School District. And a disparate impact alone does not

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18-13592 Opinion of the Court 33

violate the Constitution. Instead, a disparate impact on a group

offends the Constitution when an otherwise neutral policy is moti-

vated by “purposeful discrimination.” Pers. Adm’r of Mass. v.

Feeney, 442 U.S. 256, 274 (1979); accord Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66 (1977).

The district court proclaimed that the bathroom policy was

“no longer a neutral rule” because it “applies differently to

transgender students” and because the School Board became

“aware of the need to treat transgender students the same as other

students.” But the Supreme Court has long held that “‘[d]iscrimi-

natory purpose’ . . . implies more than intent as volition or intent

as awareness of consequences.” Feeney, 442 U.S. at 279 (quoting

United Jewish Orgs. v. Carey, 430 U.S. 144, 180 (1977) (Stewart, J.,

concurring in the judgment)); see also Bray, 506 U.S. at 271–72. In-

stead, a discriminatory purpose “implies that the decisionmaker,”

in this case the School Board, “selected or reaffirmed a particular

course of action at least in part ‘because of,’ not merely ‘in spite of,’

its adverse effects upon an identifiable group.” Feeney, 442 U.S. at

279.

There is no evidence suggesting that the School Board en-

acted the bathroom policy “because of . . . its adverse effects upon”

transgender students. See id. The district court itself noted that

the School Board did not even “have transgender students in mind

when it originally established separate multi-stall restrooms for

boys and girls.” The policy impacts approximately 0.04 percent of

the students within the School District—i.e., sixteen transgender

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34 Opinion of the Court 18-13592

students out of 40,000 total students—in a manner unforeseen

when the bathroom policy was implemented. And to accommo-

date that small percentage, while at the same time taking into ac-

count the privacy interests of the other students in the School Dis-

trict, the School Board authorized the use of sex-neutral bathrooms

as part of its Best Practices Guidelines for LGBTQ issues. As dis-

cussed above, the School Board provided this accommodation only

after undertaking significant education efforts and receiving input

from mental health professionals and LGBTQ groups both within

and beyond the School District community.

Contrary to the dissent’s claim, the School Board, through

the Best Practices Guidelines, did not discriminatorily “single[] out

transgender students.” Jill Pryor Dis. Op. at 32. The School Board

sought to accommodate transgender students by providing them

with an alternative—i.e., sex-neutral bathrooms—and not requir-

ing them to use the bathrooms that match their biological sex—

i.e., the bathroom policy Adams challenges. The School Board did

not place a special burden on transgender students by allowing

them to use sex-neutral bathrooms under the Best Practices Guide-

lines, which came well after the implementation of the longstand-

ing bathroom policy separating bathrooms by biological sex; ra-

ther, the School Board gave transgender students an alternative op-

tion in the form of an accommodation. Ultimately, there is no ev-

idence of purposeful discrimination against transgender students

by the School Board, and any disparate impact that the bathroom

policy has on those students does not violate the Constitution.

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18-13592 Opinion of the Court 35

B. The Bathroom Policy Does Not Violate Title IX

Title IX was passed as part of the Education Amendments of

1972 and “patterned after” the Civil Rights Act of 1964. Cannon v.

Univ. of Chi., 441 U.S. 677, 694–96 (1979). The statute mandates

that, subject to certain exceptions: “No person in the United States

shall, on the basis of sex, be excluded from participation in, be de-

nied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assis-

tance . . . .” 20 U.S.C. § 1681(a). Its purpose, as derived from its

text, is to prohibit sex discrimination in education. See United

States v. Bryant, 996 F.3d 1243, 1264 (11th Cir. 2021) (“As in all

cases of statutory interpretation, ‘the purpose must be derived

from the text.’” (quoting Antonin Scalia & Bryan A. Garner, Read-

ing Law 56 (2012))), cert. denied, 142 S. Ct. 583 (2021). The statute

explicitly provides for administrative enforcement, see 20 U.S.C.

§ 1682, and the Supreme Court also has read in an implied private

right of action for damages and injunctive relief, see Cannon, 441

U.S. at 717 (reading an implied private right of action into Title IX);

Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992) (con-

cluding damages are a remedy available for an action under Title

IX).

Notwithstanding Title IX’s general prohibition on sex dis-

crimination, the statute provides an express carve-out with respect

to living facilities: “nothing contained [in Chapter 38] shall be con-

strued to prohibit any educational institution receiving funds under

this Act, from maintaining separate living facilities for the different

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36 Opinion of the Court 18-13592

sexes.” 20 U.S.C. § 1686. The regulations implementing Title IX

explicitly permit schools receiving federal funds to “provide sepa-

rate housing on the basis of sex,” so long as the housing is

“[p]roportionate in quantity to the number of students of that sex

applying for such housing” and “[c]omparable in quality and cost

to the student,” 34 C.F.R. § 106.32(b), and “separate toilet, locker

room, and shower facilities on the basis of sex,” so long as the facil-

ities “provided for students of one sex [are] comparable to such fa-

cilities provided for students of the other sex,” id. § 106.33.

As such, this appeal requires us to interpret the word “sex”

in the context of Title IX and its implementing regulations. We

cannot, as the Supreme Court did in Bostock, decide only whether

discrimination based on transgender status necessarily equates to

discrimination on the basis of sex, as Adams would have us do. 140

S. Ct. at 1739 (“The question isn’t just what ‘sex’ meant, but what

Title VII says about it. Most notably, the statute prohibits employ-

ers from taking certain actions ‘because of’ sex.”). This is because

Title IX, unlike Title VII, includes express statutory and regulatory

carve-outs for differentiating between the sexes when it comes to

separate living and bathroom facilities, among others. Therefore,

if to “provide separate toilet . . . facilities on the basis of sex” means

to provide separate bathrooms on the basis of biological sex, then

the School Board’s policy fits squarely within the carve-out. 34

C.F.R. § 106.33. And if the School Board’s policy fits within the

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18-13592 Opinion of the Court 37

carve-out, then Title IX permits the School Board to mandate that

all students follow the policy, including Adams.

1. The Statute Is Not Ambiguous

To interpret “sex” within the meaning of Title IX, we look

to the ordinary meaning of the word when it was enacted in 1972.

Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (“[O]ur

job is to interpret the words consistent with their ‘ordinary mean-

ing . . . at the time Congress enacted the statute.’” (second altera-

tion in original) (quoting Perrin v. United States, 444 U.S. 37, 42

(1979))). One of the methods of determining the ordinary meaning

of a word “is by looking at dictionaries in existence around the time

of enactment.” United States v. Chinchilla, 987 F.3d 1303, 1308

(11th Cir. 2021) (quoting EEOC v. Catastrophe Mgmt. Sols., 852

F.3d 1018, 1026 (11th Cir. 2016)). Reputable dictionary definitions

of “sex” from the time of Title IX’s enactment show that when

Congress prohibited discrimination on the basis of “sex” in educa-

tion, it meant biological sex, i.e., discrimination between males and

females. See, e.g., Sex, American Heritage Dictionary of the Eng-

lish Language (1976) (“The property or quality by which organisms

are classified according to their reproductive functions.”); Sex,

American Heritage Dictionary of the English Language (1979)

(same); Sex, Female, Male, Oxford English Dictionary (re-issue ed.

1978) (defining “sex” as “[e]ither of the two divisions of organic be-

ings distinguished as male and female respectively,” “female” as

“[b]elonging to the sex which bears offspring,” and “male” as “[o]f

or belonging to the sex which begets offspring, or performs the

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38 Opinion of the Court 18-13592

fecundating function of generation”); Sex, Webster’s New World

Dictionary (1972) (“[E]ither of the two divisions, male or female,

into which persons, animals, or plants are divided, with reference

to their reproductive functions.”); Sex, Female, Male, Webster’s

Seventh New Collegiate Dictionary (1969) (defining “sex” as “ei-

ther of two divisions of organisms distinguished respectively as

male or female,” “female” as “an individual that bears young or

produces eggs as distinguished from one that begets young,” and

“male” as “of, relating to, or being the sex that begets young by

performing the fertilizing function”); Sex, Random House College

Dictionary (rev. ed. 1980) (“[E]ither the male or female division of

a species, esp. as differentiated with reference to the reproductive

functions.”).

The district court found “sex” to be “ambiguous as applied

to transgender students,” due to lack of explicit definition in either

Title IX or its implementing regulations. And in deciding that “sex”

was an ambiguous term, it noted that other courts, including the

majority in Grimm v. Gloucester County School Board, “did not

find the meaning [of ‘sex’] to be so universally clear” under Title IX

drafting-era dictionary definitions. But the district court men-

tioned only one dictionary definition—the American College Dic-

tionary (1970), defining “sex” as “the character of being either male

or female”—to support its conclusion that “sex” was an ambiguous

term at the time of Title IX’s enactment.

In the face of the overwhelming majority of dictionaries de-

fining “sex” on the basis of biology and reproductive function, the

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district court’s determination that a single dictionary, which is sup-

posedly at variance from its peers, supports the conclusion that the

word “sex” had an ambiguous meaning when Title IX was enacted

is wrong ab initio. Moreover, even a cursory examination of the

American College Dictionary’s definition of “sex” confirms that it,

too, defines “sex” based on biology and reproductive function, as

illustrated by its definitions of “female” and “male.” See Fe-

male, American College Dictionary (1970) (“[A] human being of

the sex which conceives and brings forth young; a woman or girl.”);

Male, American College Dictionary (1970) (“[B]elonging to the sex

which begets young, or any division or group corresponding to

it.”). The ambiguity purportedly found by the district court simply

is not there.

But even if the district court’s reading of the American Col-

lege Dictionary supported its finding of “sex” to be ambiguous, a

statutory term is not deemed to be ambiguous simply because the

statute does not explicitly define the term or a single dictionary pro-

vides a different meaning. See Perrin, 444 U.S. at 42 (“A fundamen-

tal canon of statutory construction is that, unless otherwise de-

fined, words will be interpreted as taking their ordinary, contem-

porary, common meaning.”). Indeed, “[a]mbiguity is a creature

not of definitional possibilities but of statutory context.” Brown v.

Gardner, 513 U.S. 115, 118 (1994). And reading in ambiguity to the

term “sex” ignores the statutory context of Title IX.

For one, Title IX explicitly provides a statutory carve-out for

“maintaining separate living facilities for the different sexes.”

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40 Opinion of the Court 18-13592

20 U.S.C. § 1686. So, if “sex” were ambiguous enough to include

“gender identity,” as Adams suggests and as the district court ulti-

mately concluded, then this carve-out, as well as the various carve-

outs under the implementing regulations, would be rendered

meaningless. This is because transgender persons—who are mem-

bers of the female and male sexes by birth—would be able to live

in both living facilities associated with their biological sex and liv-

ing facilities associated with their gender identity or transgender

status. If sex were ambiguous, it is difficult to fathom why the

drafters of Title IX went through the trouble of providing an ex-

press carve-out for sex-separated living facilities, as part of the over-

all statutory scheme. For this reason alone, reading in ambiguity

to the term “sex” ignores the overall statutory scheme and purpose

of Title IX, along with the vast majority of dictionaries defining

“sex” based on biology and reproductive function.

The district court claimed that the Supreme Court’s decision

in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality

opinion), and this Court’s decision in Glenn v. Brumby, 663 F.3d

1312 (11th Cir. 2011), provided support for its conclusion that “the

meaning of ‘sex’ in Title IX includes ‘gender identity’ for purposes

of its application to transgender students.” But both cases dealt

with workplace discrimination involving nonconformity with sex

stereotypes; neither case departed from the plain meaning of “sex,”

generally, or as used within Title IX. Price Waterhouse, 490 U.S.

at 250 (“In the specific context of sex stereotyping, an employer

who acts on the basis of a belief that a woman cannot be aggressive,

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18-13592 Opinion of the Court 41

or that she must not be, [has discriminated on the basis of sex].”);

Glenn, 663 F.3d at 1318–19 (“All persons, whether transgender or

not, are protected from discrimination on the basis of [a sex stere-

otype].”).

Neither case reads “gender identity” into the definition of

“sex”; they discuss unlawful action by employers’ reliance on im-

permissible stereotypes. And, as discussed above, “sex” is not a ste-

reotype. Just as importantly, and contrary to Adams’s arguments

that Bostock equated “sex” to “transgender status,” the Supreme

Court in Bostock actually “proceed[ed] on the assumption” that the

term “sex,” as used in Title VII, “refer[ed] only to biological distinc-

tions between male and female.” 140 S. Ct. at 1739 (emphasis

added). There simply is no alternative definition of “sex” for

transgender persons as compared to nontransgender persons under

Title IX. The district court erred by divining one, and applying that

definition to Adams, because courts must “avoid interpretations

that would ‘attribute different meanings to the same phrase’” or

word in “all but the most unusual” of statutory circumstances. Co-

chise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct.

1507, 1512 (2019) (quoting Reno v. Bossier Parish Sch. Bd., 528 U.S.

320, 329 (2000)).

In this regard, the district court’s error is made even clearer

when we consider the ramifications of its reading of Title IX. Read-

ing “sex” to include “gender identity,” and moving beyond a bio-

logical understanding of “sex,” would provide more protection

against discrimination on the basis of transgender status under the

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42 Opinion of the Court 18-13592

statute and its implementing regulations than it would against dis-

crimination on the basis of sex. Title IX and its implementing reg-

ulations prohibit discrimination on the basis of sex, but they also

explicitly permit differentiating between the sexes in certain in-

stances, including school bathrooms, locker rooms, and showers,

under various carve-outs. As explained in our discussion about the

statutory scheme and purpose of Title IX, transgender persons fall

into the preexisting classifications of sex—i.e., male and female.

Thus, they are inherently protected under Title IX against discrim-

ination on the basis of sex. But reading “sex” to include “gender

identity,” as the district court did, would result in situations where

an entity would be prohibited from installing or enforcing the oth-

erwise permissible sex-based carve-outs when the carve-outs come

into conflict with a transgender person’s gender identity. Such a

reading would thereby establish dual protection under Title IX

based on both sex and gender identity when gender identity does

not match sex. That conclusion cannot comport with the plain

meaning of “sex” at the time of Title IX’s enactment and the pur-

pose of Title IX and its implementing regulations, as derived from

their text.

Finally, in this appeal, any action by the School Board based

on sex stereotypes is not relevant to Adams’s claim because, as dis-

cussed, Title IX and its implementing regulations expressly allow

the School Board to provide separate bathrooms “on the basis of

sex.” See 20 U.S.C. §§ 1681(a), 1686; 34 C.F.R. § 106.33. Regardless

of whether Adams argues that the bathroom policy itself violates

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18-13592 Opinion of the Court 43

Title IX’s general prohibition against sex discrimination, this Court

must still determine whether the application of the policy fits into

Title IX’s carve-out, which it does. An example makes this clear.

Think of a biological female student, who does not identify

as transgender and who sued her school under Title IX to gain ac-

cess to the male bathroom. Regardless of whether preventing the

female student from using the male bathroom would constitute

separation on the basis of sex—and it plainly would—the carve-out

for bathrooms under Title IX would provide the school a safe har-

bor. In other words, because Title IX explicitly provides for sepa-

rate bathrooms on the basis of sex, the student’s claim would fail.

So, too, must Adams’s claim, because the carve-out for bathrooms

provides the School Board a safe harbor for the same reasons.7

In summary, Title IX prohibits discrimination on the basis of

sex, but it expressly permits separating the sexes when it comes to

7 Nevertheless, the dissent, using Bostock, argues “that ‘sex’ was a but-for

cause of the discrimination Adams experienced,” which the dissent argues vi-

olates Title IX. Jill Pryor Dis. Op. at 59. This argument is of no avail. Under

the dissent’s theory, any lawful policy separating on the basis of “sex” pursuant

to Title IX’s statutory and regulatory carve-outs would inherently provide the

“but-for cause of . . . discrimination” that the dissent is concerned about be-

cause such a policy inherently involves distinguishing between the sexes from

the outset. The dissent’s theory, then, would swallow the carve-outs and ren-

der them meaningless because, as the dissent would have it, any policy sepa-

rating by “sex” would provide “a but-for cause of . . . discrimination” if a liti-

gant felt that she or he had been discriminated against by the sex-based sepa-

ration authorized by the carve-outs. Adams, who is a biological female

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44 Opinion of the Court 18-13592

bathrooms and other living facilities. When we read “sex” in Title

IX to mean “biological sex,” as we must, the statutory claim re-

solves itself. Title IX’s implementing regulations explicitly allow

schools to “provide separate toilet . . . facilities on the basis of [bio-

logical] sex.” 34 C.F.R. § 106.33. The School Board does just that.

Because the School Board thus acts in accordance with Title IX’s

bathroom-specific regulation, its decision to direct Adams—who

was born, and enrolled in the School District as, a female—to use

the female bathrooms is consistent with Title IX’s precepts. As

such, Adams’s claim under the statute must fail.

2. Even if the Statute Were Unclear, the Spending Clause Mil-

itates Toward Finding for the School Board

Even if the term “sex,” as used in Title IX, were unclear, we

would still have to find for the School Board. This is because Con-

gress passed Title IX pursuant to its authority under the Spending

Clause. U.S. Const. art. I, § 8, cl. 1; Davis, 526 U.S. at 640 (“[W]e

have repeatedly treated Title IX as legislation enacted pursuant to

Congress’ authority under the Spending Clause.”). And “if Con-

gress intends to impose a condition on the grant of federal moneys

[under its Spending Clause authority], it must do so unambigu-

ously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

(1981). Further, “private damages actions are available only where

alleging discrimination based on not being able to access the bathrooms re-

served for biological males, is no different from such a litigant.

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18-13592 Opinion of the Court 45

recipients of federal funding had adequate notice that they could

be liable for the conduct at issue.” Davis, 526 U.S. at 640.

A safeguard of our federalist system is the demand that Con-

gress provide the States with a clear statement when imposing a

condition on federal funding because “legislation enacted pursuant

to the spending power is much in the nature of a contract: in return

for federal funds, the States agree to comply with federally imposed

conditions.” Pennhurst, 451 U.S. at 17. Thus, the “legitimacy of

Congress’ power to legislate under the [S]pending [Clause]

. . . rests on whether the State voluntarily and knowingly accepts

the terms of the ‘contract.’” Id. (quoting Steward Mach. Co. v. Da-

vis, 301 U.S. 548, 585–98 (1937)). Otherwise, if Congress’s spending

authority were “to be limited only by Congress’ notion of the gen-

eral welfare, the reality, given the vast financial resources of the

Federal Government, is that the Spending Clause” would “give[]

‘power to the Congress to tear down the barriers, to invade the

states’ jurisdiction, and to become a parliament of the whole peo-

ple, subject to no restrictions save such as are self-imposed.” South

Dakota v. Dole, 483 U.S. 203, 217 (1987) (O’Connor, J., dissenting)

(quoting United States v. Butler, 297 U.S. 1, 78 (1936)).

Under the Spending Clause’s required clear-statement rule,

the School Board’s interpretation that the bathroom carve-out per-

tains to biological sex would only violate Title IX if the meaning of

“sex” unambiguously meant something other than biological sex,

thereby providing the notice to the School Board that its under-

standing of the word “sex” was incorrect. As we have thoroughly

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46 Opinion of the Court 18-13592

discussed, it does not. The dissent implicitly acknowledges this

point. Jill Pryor Dis. Op. at 57 n.25 (“I . . . have no reason to address

the majority opinion’s Spending Clause argument. The Spending

Clause cannon of construction only comes into play if we find our-

selves dealing with an ambiguous statute.”). Moreover, schools

across the country separate bathrooms based on biological sex and

colleges and universities across the country separate living facilities

based on biological sex. The notion that the School Board could or

should have been on notice that its policy of separating male and

female bathrooms violates Title IX and its precepts is untenable.8

Title IX’s statutory structure and corresponding regulatory

scheme illustrate why a clear statement from Congress equating

8 Adams contends that the School Board made this argument—that Congress

must condition funds under its Spending Clause authority in an unambiguous

way—for the first time on appeal. Thus, Adams argues that this Court should

not consider the School Board’s argument. Adams is incorrect. We are duty

bound to apply the correct law; “parties cannot waive the application of the

correct law or stipulate to an incorrect legal test.” Jefferson v. Sewon Am.,

Inc., 891 F.3d 911, 923 (11th Cir. 2018); accord United States v. Lee, 29 F.4th

665, 669 n.2 (11th Cir. 2022) (finding that a defendant could not waive the ap-

plication of the Blockburger test in connection with asserting a violation of the

Double Jeopardy Clause). And we are required to apply the clear-statement

rule to legislation passed under Congress’s Spending Clause authority. See,

e.g., Davis, 526 U.S. at 640 (“In interpreting language in spending legislation,

we thus ‘insis[t] that Congress speak with a clear voice,’ recognizing that

‘[t]here can, of course, be no knowing acceptance [of the terms of the putative

contract] if a State is unaware of the conditions [imposed by the legislation] or

is unable to ascertain what is expected of it.’” (alternations in original)

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18-13592 Opinion of the Court 47

“sex” to “gender identity” or “transgender status” is so important.

Adams’s view of what constitutes “sex” for purposes of Title IX will

have ramifications far beyond the bathroom door at a single high

school in Ponte Vedra, Florida. This is because Title IX’s statutory

carve-out from its general prohibition against sex discrimination

applies to “living facilities,” not only bathrooms. 20 U.S.C. § 1686.

And the same regulation that authorizes schools to provide sepa-

rate bathrooms on the basis of sex also permits schools to provide

separate “locker room . . . and shower facilities on the basis of sex.”

34 C.F.R. § 106.33. Therefore, affirming the district court’s order,

and equating “sex” with “gender identity” or “transgender status”

for purposes of Title IX, would, at the very least, generally impact

living facilities, locker rooms, and showers, in addition to bath-

rooms, at schools across the country—affecting students in kinder-

garten through the post-graduate level.

For the same reason, affirming the district court’s order

would have broad implications for sex-separated sports teams at

institutions subject to Title IX, including public schools and public

and private universities. While Title IX says nothing specifically

about sports, its implementing regulations do. Those regulations,

which necessarily flow from Title IX’s general prohibition against

sex discrimination, mirror the blanket-rule-with-specific-exception

framework that Title IX applies to living facilities. The

(quoting Pennhurst, 451 U.S. at 17)). For these reasons, Adams’s contention

lacks merit.

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48 Opinion of the Court 18-13592

implementing regulations say, first, that “[n]o person shall, on the

basis of sex, be excluded from participation in . . . any interscholas-

tic, intercollegiate, club or intramural athletics offered by a recipi-

ent [of federal funds], and no recipient shall provide any such ath-

letics separately on such basis.” 34 C.F.R. § 106.41(a). In the very

next paragraph, however, the regulations instruct that, notwith-

standing the above statement, “a recipient may operate or sponsor

separate teams for members of each sex where selection for such

teams is based upon competitive skill or the activity involved is a

contact sport.” Id. § 106.41(b). Thus, equating “sex” to “gender

identity” or “transgender status” would also call into question the

validity of sex-separated sports teams.

To be sure, the district court disclaimed any suggestion that

its decision would apply beyond the bathroom. But Title IX is not

so limited; it applies to “living facilities,” 20 U.S.C. § 1686, “toilet,

locker room, and shower facilities,” 34 C.F.R. § 106.33, and sports

teams, id. § 106.41, at any institution subject to its mandates. The

district court did not identify any textual or other support—be-

cause there is none—for its claim that its reading of “sex” applies

only to high school bathrooms. Neither can the dissent identify

any textual or persuasive support to cabin the district court’s deci-

sion to high school bathrooms. Jill Pryor Dis. Op. at 62-64. If “sex”

as used in Title IX means “gender identity” or “transgender status,”

then there is simply no principled reason to limit application of the

district court’s reasoning to the high school bathroom. Absent a

clear statement from Congress, such a reading of Title IX would

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18-13592 Opinion of the Court 49

offend first principles of statutory interpretation and judicial re-

straint.

****

In sum, commensurate with the plain and ordinary meaning

of “sex” in 1972, Title IX allows schools to provide separate bath-

rooms on the basis of biological sex. That is exactly what the

School Board has done in this case; it has provided separate bath-

rooms for each of the biological sexes. And to accommodate

transgender students, the School Board has provided single-stall,

sex-neutral bathrooms, which Title IX neither requires nor prohib-

its. Nothing about this bathroom policy violates Title IX. Moreo-

ver, under the Spending Clause’s clear-statement rule, the term

“sex,” as used within Title IX, must unambiguously mean some-

thing other than biological sex—which it does not—in order to

conclude that the School Board violated Title IX. The district

court’s contrary conclusion is not supported by the plain and ordi-

nary meaning of the word “sex” and provides ample support for

subsequent litigants to transform schools’ living facilities, locker

rooms, showers, and sports teams into sex-neutral areas and activ-

ities. Whether Title IX should be amended to equate “gender iden-

tity” and “transgender status” with “sex” should be left to Con-

gress—not the courts.

IV. CONCLUSION

For all these reasons, we reverse and remand the district

court’s order.

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50 Opinion of the Court 18-13592

REVERSED AND REMANDED.

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18-13592 LAGOA, J., Specially Concurring 1

LAGOA, Circuit Judge, Specially Concurring:

I concur fully in the majority opinion’s determination that

the School Board of St. Johns County’s unremarkable bathroom

policy neither violates the Equal Protection Clause nor Title IX. I

write separately to discuss the effect that a departure from a bio-

logical understanding of “sex” under Title IX—i.e., equating “sex”

to “gender identity” or “transgender status”—would have on girls’

and women’s rights and sports.

As discussed in the majority opinion, Title IX does not ex-

plicitly define “sex” within its statutory scheme and corresponding

implementing regulations. And Title IX’s statutory language says

nothing specifically about sports. But the Title IX regulations that

apply to sports do, and those regulations mirror the blanket-rule-

with-specific-exception framework that Title IX statutorily applies

to living facilities. Indeed, notwithstanding the broad prohibition

against discrimination “on the basis of sex” in athletics, 34 C.F.R.

§ 106.41(a), the implementing regulations also allow a recipient of

federal funds to “operate or sponsor separate teams for members

of each sex where selection for such teams is based upon competi-

tive skill or the activity involved is a contact sport,” id. § 106.41(b).

As with all of Title IX’s regulatory carve-outs allowing certain sex-

separated activities, the interpretation of “sex” in the sex-separated

sports carve-out flows from the meaning of “sex” within Title IX

itself. And the interpretation of “sex” in the statute “would of

course take precedence” when interpreting “sex” in the regulatory

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2 LAGOA, J., Specially Concurring 18-13592

sports carve-out. Bostock v. Clayton County, 140 S. Ct. 1731, 1779

n.48 (2020) (Alito, J., dissenting).

Affirming the district court’s order and adopting Adams’s

definition of “sex” under Title IX to include “gender identity” or

“transgender status” would have had repercussions far beyond the

bathroom door. There simply is no limiting principle to cabin that

definition of “sex” to the regulatory carve-out for bathrooms under

Title IX, as opposed to the regulatory carve-out for sports or, for

that matter, to the statutory and regulatory carve-outs for living

facilities, showers, and locker rooms. And a definition of “sex” be-

yond “biological sex” would not only cut against the vast weight of

drafting-era dictionary definitions and the Spending Clause’s clear-

statement rule but would also force female student athletes “to

compete against students who have a very significant biological ad-

vantage, including students who have the size and strength of a

male but identify as female.” Id. at 1779–80. Such a proposition—

i.e., commingling both biological sexes in the realm of female ath-

letics—would “threaten[] to undermine one of [Title IX’s] major

achievements, giving young women an equal opportunity to par-

ticipate in sports.” Id. at 1779.

To understand why such a judicially-imposed proposition

would be deleterious, one need not look further than the neighbor-

hood park or local college campus to see the remarkable impact

Title IX has had on girls and women in sports. At nearly every park

in the country, young girls chase each other up and down soccer

fields, volley back and forth on tennis courts, and shoot balls into

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18-13592 LAGOA, J., Specially Concurring 3

hoops. And at colleges, it is now commonplace to see young

women training in state-of-the-art athletic facilities, from swim-

ming pools to basketball arenas, with the records of their accolades

hung from the rafters.

The implementation of Title IX and its regulations is the rea-

son such scenes are now commonplace because Title IX “precipi-

tated a virtual revolution for girls and women in sports.” Deborah

Brake, The Struggle for Sex Equality in Sport and the Theory Be-

hind Title IX, 34 U. Mich. J.L. Reform 13, 15 (2000). Indeed, “Title

IX has paved the way for significant increases in athletic participa-

tion for girls and women at all levels of education.” Id. Its effects

in this regard have been noteworthy:

Fewer than 300,000 female students participated in in-

terscholastic athletics in 1971. By 1998–99, that num-

ber exceed 2.6 million, with significant increases in

each intervening year. To put these numbers in per-

spective, since Title IX was enacted, the number of

girls playing high school sports has gone from one in

twenty-seven, to one in three.

Id. (footnotes omitted).

And, as courts and commentators have noted, “Title IX

shapes women’s interest [in sports], rather than merely requiring

equality based on a preexisting level of interest.” See David S. Co-

hen, Title IX: Beyond Equal Protection, 28 Harv. J.L. & Gender

217, 263 (2005) (emphasis added) (citing Cohen v. Brown Univ., 101

F.3d 155, 188 (1st Cir. 1996)). “What stimulated [the] remarkable

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4 LAGOA, J., Specially Concurring 18-13592

change in the quality of women’s athletic competition was not a

sudden, anomalous upsurge in women’s interest in sports, but the

enforcement of Title IX’s mandate of gender equity in sports.” Co-

hen, 101 F.3d at 188 (citing Robert Kuttner, Vicious Circle of Ex-

clusion, Wash. Post, Sept. 4, 1996, at A15). In short, “[t]here can be

no doubt that Title IX has changed the face of women’s sports as

well as our society’s interest in and attitude toward women athletes

and women’s sports.” Id.

But had the majority opinion adopted Adams’s argument

that “sex,” as used in Title IX, includes the concept of “gender iden-

tity” or “transgender status,” then it would have become the law

of this Circuit for all aspects of the statute. Under such a precedent,

a transgender athlete, who is born a biological male, could demand

the ability to try out for and compete on a sports team comprised

of biological females. Such a commingling of the biological sexes

in the female athletics arena would significantly undermine the

benefits afforded to female student athletes under Title IX’s allow-

ance for sex-separated sports teams.

This is because it is neither myth nor outdated stereotype

that there are inherent differences between those born male and

those born female and that those born male, including transgender

women and girls, have physiological advantages in many sports.

Doriane Lambelet Coleman, et al., Re-affirming the Value of the

Sports Exception to Title IX’s General Non-Discrimination Rule,

27 Duke J. Gender L. & Pol’y 69, 87–88 (2020). While pre-puberty

physical differences that affect athletic performance are “not

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18-13592 LAGOA, J., Specially Concurring 5

unequivocally negligible” between males and females, measurable

physical differences between males and females develop during pu-

berty that significantly impact athletic performance. Emma N. Hil-

ton & Tommy R. Lundberg, Transgender Women in The Female

Category of Sport: Perspectives on Testosterone Suppression and

Performance Advantage, 51 Sports Medicine 200–01 (2021). In-

deed, during puberty, “testosterone levels increase 20-fold in

males, but remain low in females, resulting in circulating testos-

terone concentrations at least 15 times higher in males than in fe-

males of any age.” Id. at 201. And “the biological effects of elevated

pubertal testosterone are primarily responsible for driving the di-

vergence of athletic performances between males and females.” Id.

For example, in comparison to biological females, biological

males have: “greater lean body mass,” i.e., “more skeletal muscle

and less fat”; “larger hearts,” “both in absolute terms and scaled to

lean body mass”; “higher cardiac outputs”; “larger hemoglobin

mass”; larger maximal oxygen consumption (VO2 max), “both in

absolute terms and scaled to lean body mass”; “greater glycogen

utilization”; “higher anaerobic capacity”; and “different economy

of motion.” The Role of Testosterone in Athletic Performance,

Duke Ctr. for Sports L. & Pol’y 1 (Jan. 2019). These physical differ-

ences cut directly to the “main physical attributes that contribute

to elite athletic performance,” as recognized by sports science and

sports medicine experts. Id. In tangible performance terms, studies

have shown that these physical differences allow post-pubescent

males to “jump (25%) higher than females, throw (25%) further

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6 LAGOA, J., Specially Concurring 18-13592

than females, run (11%) faster than females, and accelerate (20%)

faster than females” on average. Jennifer C. Braceras, et al., Com-

petition: Title IX, Male-Bodied Athletes, and the Threat to

Women’s Sports, Indep. Women’s F. & Indep. Women’s L. Ctr. 20

(2021) (footnotes omitted). The largest performance gap may be

seen “in the area of strength.” Id. Studies also have shown that

males “are able to lift 30% more than females of equivalent stature

and mass,” as well as punch with significantly greater force than

females. Id.

Importantly, scientific studies indicate that transgender fe-

males, even those who have undergone testosterone suppression

to lower their testosterone levels to within that of an average bio-

logical female, retain most of the puberty-related advantages of

muscle mass and strength seen in biological males. See generally,

e.g., Hilton & Lundberg, supra. As such, “trans women and girls

remain fully male-bodied in the respects that matter for sport; [and]

because of this, their inclusion effectively de-segregates the teams

and events they join.” Coleman et al., supra, at 108. This is be-

cause:

[F]emale sport is by design and for good reasons, a re-

productive sex classification. These reasons have

nothing to do with transphobia and everything to do

with the performance gap that emerges from the on-

set of male puberty. Whether one is trans or not, if

one is in sport and cares about sex equality, this phys-

ical phenomenon is undeniably relevant. Changing

how we define “female” so that it includes individuals

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18-13592 LAGOA, J., Specially Concurring 7

of both sexes, and then disallowing any distinctions

among them on the basis of sex, is by definition and

in effect a rejection of Title IX’s equality goals.

Id. at 133.

As particularly relevant to this appeal, such physiological dif-

ferences exist in high school sports. See id. at 89–90. While most

studies look at the differences between the best or “elite class” fe-

males in sport as compared to their male counterparts, “[i]t is per-

haps more important . . . that those girls who are only average high

school athletes . . . would fare even worse.” Id. at 90. Looking to

these young women and girls, “if sport were not sex segregated,

most school-aged females would be eliminated from competition

in the earliest rounds.” Id. For that matter, many biological girls

may not even make the team, missing out on the key skills learned

from participation in sports and missing out on key opportunities

to further their education through higher education scholarships.

See id. at 72.

But why does it matter if women and girls are given the

equal opportunity to compete in sports? The answer cuts to the

heart of why Title IX is seen as such a success story for women’s

rights and why this case presents significant questions of general

public concern. “Girls who play sports stay in school longer, suffer

fewer health problems, enter the labor force at higher rates, and

are more likely to land better jobs. They are also more likely to

lead.” Beth A. Brooke-Marciniak & Donna de Varona, Amazing

Things Happen When You Give Female Athletes the Same

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8 LAGOA, J., Specially Concurring 18-13592

Funding as Men, World Econ. F. (Aug. 25, 2016),

https://www.weforum.org/agenda/2016/08/sustaining-the-

olympic-legacy-women-in-sports-and-public-policy/. “[R]esearch

shows stunningly that 94[] percent of women C-Suite executives

today played sport, and over half played at a university level.” Id.;

Coleman et al., supra, at 106. Being engaged in sports “inculcate[s]

the values of fitness and athleticism for lifelong health and well-

ness” and “impart[s] additional socially valuable traits including

teamwork, sportsmanship, and leadership, as well as individually

valuable traits including goal setting, time management, persever-

ance, discipline, and grit.” Coleman et al., supra, at 104. To open

up competition to transgender women and girls hinders biological

women and girls—over half of the United States population—from

experiencing these invaluable benefits and learning these traits. In-

deed:

[T]he sports exception to Title IX’s general nondis-

crimination rule has long been one of the statute’s

most popular features. This affirmative approach is

understood to be necessary to ensure that the sex-

linked differences that emerge from the onset of male

puberty do not stand as obstacles to sex equality in

the athletic arena. From the beginning, it was under-

stood that any different, sex neutral measures would

ensure precisely the opposite—that spaces on selec-

tive teams and spots in finals and podiums would all

go to boys and men. The sports exception makes it

possible for women and girls also to benefit from the

multiple positive effects of these experiences, and for

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18-13592 LAGOA, J., Specially Concurring 9

their communities and the broader society to reap the

benefits of their empowerment.

Id. at 132 (footnote omitted).

Affirming the district court’s conclusion that “the meaning

of ‘sex’ in Title IX includes ‘gender identity’” would open the door

to eroding Title IX’s beneficial legacy for girls and women in sports.

And removing distinctions based on biological sex from sports, par-

ticularly for girls in middle school and high school, harms not only

girls’ and women’s prospects in sports, but also hinders their devel-

opment and opportunities beyond the realm of sports—a signifi-

cant harm to society as a whole.

****

To summarize, as a matter of principled statutory interpre-

tation, there can only be one definition of “sex” under Title IX and

its implementing regulations. Departing from a biological and re-

productive understanding of such a definition, as supported by the

overwhelming majority of drafting-era dictionaries, would have

vast societal consequences and significantly impact girls’ and

women’s rights and sports. The majority opinion is correct not to

depart from such an understanding absent a clear statement from

Congress. Whether “sex,” as set forth in a statute enacted in 1972,

should be updated to include “gender identity” or “transgender sta-

tus” is best left for Congress and the democratic and legislative pro-

cesses—not to unelected members of the Judiciary.

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18-13592 WILSON, J., dissenting 1

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 classifica-

tion. I write separately, with his analysis in mind, to add that even

accepting the Majority’s argument that the relevant factor is an in-

dividual’s biological sex, the policy is still discriminatory, and there-

fore we must engage in a robust Title IX and Equal Protection anal-

ysis.

Under the Majority’s rationale, the bathroom policy distin-

guishes between boys and girls on the basis of biological sex—

“which the School Board determines by reference to various docu-

ments, 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

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2 Wilson, J., dissenting 18-13592

For argument’s sake, I adopt the Majority’s succinct defini-

tion 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 in-

fant’s biological sex. For this reason, it is easy to presume that iden-

tifying 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 ‘in-

tersex’ because they have physical, anatomical sex characteristics

that are a mixture of those typically associated with male and fe-

male designations (e.g. congenital adrenal hyperplasia).”

The word intersex is an umbrella term describing a range of

natural physiological variations—including external genitals, inter-

nal 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 be-

come apparent at different ages. Intersex people have been

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18-13592 Wilson, J., dissenting 3

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 individ-

uals are assigned a particular sex at birth based on the available in-

dicia 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

1Justinian’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).

2See, e.g., Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020) (considering in-

tersex 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 unneces-

sary 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).

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4 Wilson, J., dissenting 18-13592

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 under-

lying male chromosomes. Medical professionals would most cer-

tainly, in the second-instance, recategorize him as biologically

male.

5-alpha reductase is not the only condition that causes de-

layed 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?

3 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 An-

drogen Insensitivity, Klinefelter Syndrome, Turner Syndrome, Mosaic Turner

Syndrome, congenital adrenal hyperplasia, and cloacal exstrophy.

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18-13592 Wilson, J., dissenting 5

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-al-

pha 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 us-

ing 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 biologi-

cal sex. No other category of student is required to use the bath-

room associated with the opposite biological sex, and therefore

such a policy is plainly discriminatory.

All of this makes the Majority’s deployment of the “prover-

bial 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

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6 Wilson, J., dissenting 18-13592

The existence of intersex students also reveals how nonsen-

sical 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 pol-

icy 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 fantasti-

cal 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

4 InterACT is an intersex advocacy organization.

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18-13592 Wilson, J., dissenting 7

differing physiology, it would presumably have poli-

cies in place to address differences between pre-pu-

bescent and post-pubescent students, as well as inter-

sex individuals who possess some mix of male and fe-

male 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 indi-

viduals 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 rip-

ple out for cases to come, nor should we do so in order to avoid

engaging in the rigorous intermediate scrutiny analysis the Consti-

tution 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.

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18-13592 JORDAN, J., Dissenting 1

JORDAN, Circuit Judge, joined by WILSON and ROSENBAUM, Circuit

Judges, Dissenting:

Two legal propositions in this case are undisputed. The first

is that the School Board’s unwritten bathroom policy regulates on

the basis of gender. The second is that the policy, as a gender-based

regulation, must satisfy intermediate scrutiny. Given these two

propositions, the evidentiary record, and the district court’s factual

findings, the School Board cannot justify its bathroom policy under

the Equal Protection Clause of the Fourteenth Amendment. See

Adams by and through Kasper v. Sch. Bd. of St. Johns Cnty., 318 F.

Supp. 3d 1293, 1311–1320 (M.D. Fla. 2018); Adams by and through

Kasper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1297–99 (11th

Cir. 2020); Adams v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1308–

11 (11th Cir. 2021).

The School Board did not allow Drew Adams, a transgender

student, to use the boys’ bathroom. As explained below, however,

the School Board’s policy allows a transgender student just like

Drew to use the boys’ bathroom if he enrolls after transition with

documents listing him as male. Because such a student poses the

same claimed safety and privacy concerns as Drew, the School

Board’s bathroom policy can only be justified by administrative

convenience. And when intermediate scrutiny applies,

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2 JORDAN, J., Dissenting 18-13592

administrative convenience is an insufficient justification for a gen-

der-based classification.1

I

Intermediate scrutiny requires a showing that the chal-

lenged classification “serves important governmental objectives

and that the discriminatory means employed are substantially re-

lated to the achievement of those objectives.” United States v. Vir-

ginia, 518 U.S. 515, 533 (1996) (internal quotation marks and cita-

tions omitted). “The burden of justification is demanding,” and

here it “rests entirely on” the School Board. Id.

In a number of cases applying intermediate scrutiny, the Su-

preme Court has held that a gender-based regulation cannot be jus-

tified on the basis of administrative convenience. These cases are

Craig v. Boren, 429 U.S. 190, 198 (1976) (“Decisions following Reed

[v. Reed, 404 U.S. 71 (1971)] . . . have rejected administrative ease

and convenience as sufficiently important objectives to justify gen-

der-based classifications.”); Orr v. Orr, 440 U.S. 268, 281 (1979)

(where there is “no reason” to use “sex as a proxy for need,” “not

even an administrative-convenience rationale exists to justify oper-

ating by generalization or proxy”); Wengler v. Druggists Mut. Ins.

1 The district court awarded Drew the same damages for both the equal pro-

tection claim and the Title IX claim, noting that the injuries arising out of these

violations were “identical” and specifying that he was not entitled to double

recovery. See D.E. 192 at 68 n.58. As an affirmance on the equal protection

claim is sufficient to uphold the judgment, I do not address the Title IX claim.

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18-13592 JORDAN, J., Dissenting 3

Co., 446 U.S. 142, 151–52 (1980) (holding that the bare assertion of

a difference in the economic standing of working men and women

“falls far short of justifying gender-based discrimination on the

grounds of administrative convenience”); and Stanley v. Illinois,

405 U.S. 645, 656–57 (1972) (although “[p]rocedure by presumption

is always cheaper and easier than individualized determination[,]”

the “Constitution recognizes higher values than speed and effi-

ciency”).

This is not a controversial proposition. Scholars and com-

mentators agree that administrative convenience cannot save a

gender-based classification under intermediate scrutiny. See, e.g.,

Laurence H. Tribe, American Constitutional Law 1568 n.24 (2d ed.

1988) (explaining that, at the time of its decision in Wengler, the

Supreme Court had “never upheld a gender classification on [the]

basis” of administrative convenience); 1 William J. Rich, Modern

Constitutional Law: Liberty and Equality § 13:5 (3d ed. 2021) (not-

ing that the Supreme Court has “repeatedly concluded that admin-

istrative convenience served by use of [traditional gender] stereo-

types will not meet a state’s need for an ‘important governmental

interest’”); Gabrielle Fromer, With Equal Opportunity Comes

Equal Responsibility: The Unconstitutionality of a Male-Only

Draft, 18 Geo. J. of Gender & L. 173, 189 (2017) (“Administrative

convenience is an insufficient basis to uphold a law under interme-

diate scrutiny.”).

II

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4 JORDAN, J., Dissenting 18-13592

The School Board’s unwritten bathroom policy is that, for

grades four and up, “biological boys” must use the boys’ bathrooms

and “biological girls” must use the girls’ bathrooms, with the terms

boys and girls defined as the sex assigned at birth. See D.E. 162 at

10–11. For transgender students, the policy purportedly requires

them to use the bathrooms that correspond to their sex assigned at

birth—in conflict with their gender identity—or gender-neu-

tral/single-stall bathrooms. But, as the district court found, that is

not really how the policy works.

A

As the School Board’s own witnesses explained at trial, a stu-

dent’s enrollment paperwork—which are “accept[ed] . . . at face

value”—controls for the purpose of the bathroom policy. In other

words, for the School Board the enrollment documents dictate gen-

der with respect to the bathroom policy. See D.E. 161 at 229, 234–

35; D.E. 162 at 12–13, 50–51.

Drew registered in the St. Johns County school system as an

incoming fourth-grader prior to his transition. See D.E. 192 at 24.

When he did so, he submitted enrollment documentation reflect-

ing his sex assigned at birth, including a birth certificate that listed

his gender as “female.” See D.E. 161 at 31–32. The School Board

therefore classified him as a girl based on his original enrollment

documents. See D.E. 161 at 253. Years later, the School Board con-

tinued to classify him as a girl for the purposes of its bathroom pol-

icy even after he (i) had transitioned socially at school (including

using male pronouns), (ii) had a double mastectomy, and (iii) had

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18-13592 JORDAN, J., Dissenting 5

his Florida driver’s license and current Florida birth certificate

changed to list him as male. See D.E. 160-1 at 95–96 (social transi-

tion), 99–101 (medical transition), 108–110 (legal transition).

The problem for the School Board is that a transgender stu-

dent who is the same age as Drew and is like him in all relevant

respects (including physical appearance and the stage of gender

transition and gender identity) will be treated as a boy for purposes

of the bathroom policy if he registers in the school system after

starting gender transition and after changing his driver’s license and

birth certificate to indicate that he is male. That transgender stu-

dent, who presents the same safety and privacy concerns that the

School Board claims Drew does, would nevertheless be allowed to

use the boys’ bathroom. This is fatal under intermediate scrutiny.

Here is the testimony of Sallyanne Smith, the retired direc-

tor of student services for the School Board:

Q: If a . . . transgender child comes in with a birth

certificate that says their gender identity, they come

in with a driver’s license, would St. Johns admit that

student in their school?

A: You mean as a certain gender?

Q: That’s right . . . .

A: It’s based on the records in the registration packet.

It’s based on the birth certificate, any physicals.

There are forms that are filled out where a box is

checked female or male. We specifically go by that

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6 JORDAN, J., Dissenting 18-13592

unless we had a court order to do anything different.

But we have to use what’s on the registration packet.

Q: So you could have a situation where you have a

transfer student, say, from Broward County, a transfer

transgender student, let’s say a – changed to male

who shows up who had their birth certificate from

that – prior to coming to St. Johns and they register,

you would have a transgender student basically vio-

lating your [restroom] policy because you would

know; is that correct, ma’am?

A: I would go specifically by the paperwork. What-

ever I see is what we would go by.

D.E. 161 at 205–06.

The testimony of Cathy Mittelstadt, the School Board’s dep-

uty superintendent for operations, was the same:

Q: If . . . a transgender person matriculated to your

school and had a birth certificate listing their gender

identity that was different than their biological birth

sex, but that’s the first document that the school had

that showed . . . their sex, how would they be charac-

terized by the St. Johns County School District?

A: If that student is entering our district for the first

time with a birth certificate that indicates male or fe-

male . . . and all the other documents support that’s

what the student is entering, then that first-time entry

would predicate. That’s how we would manage that

student.

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18-13592 JORDAN, J., Dissenting 7

Q: And what would that mean vis-à-vis bathroom us-

age?

A: Based on how they enrolled, they would have ac-

cess to that restroom that corresponded with how we

coded it in the system at the time of enrollment.

D.E. 162 at 35–36.

And so was the testimony of Frank Upchurch, the School

Board’s attorney:

Q: Let’s assume . . . just a hypothetical, a student

transfers in. The enrollment form is clicked male.

The birth certificate says male. And all the other doc-

uments on the papers indicate male. And for pur-

poses of St. Johns County’s way of determining bio-

logical sex, we have a male, but the student is actually

a biological female.

Does that raise any concern from the district’s per-

spective, that situation?

A: As a practical matter, I would say no. The district

does not play bathroom cop. . . .

....

Q: If you had a transgender boy in your hypothetical

who came with all the paperwork checked off that’s

consistent with his gender identity, you would agree

with me, sir, that at that point in time the school dis-

trict would have no reason to question that individ-

ual’s use of the boys’ bathroom, yes?

A: I agree with that, yes.

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8 JORDAN, J., Dissenting 18-13592

Q: If you have a transgender boy who came in but

whose documentation was later changed because

originally it indicated female, that individual would

not be permitted to use a bathroom that conforms

with their gender identity, right?

A: That’s correct. Because the school board would

then know that the student was not a biological male

who’s eligible to use that bathroom.

Q: Understood. So during that period of time when

they’re both in school, both transgender students,

they not both being treated the same way, agreed?

A: I agree as far as that goes. The difference is that in

one instance, the district would have knowledge of

the pertinent facts. Whereas in the other, it wouldn’t.

It can’t . . . redirect a student to another bathroom if

it doesn’t know that that student is not eligible to use

the one he’s been using.

D.E. 162 at 53, 89–90.

B

Based on this consistent and unrefuted testimony, the district

court found that “if a transgender student initially enrolls with doc-

uments listing the gender that matches the student’s gender iden-

tity,” the School Board “will accept the student as being of that gen-

der.” Adams, 318 F. Supp. 3d at 1302. In other words, “if a

transgender student enrolled in . . . St. Johns County . . . having

already changed their legal documents to reflect their gender iden-

tity, the student’s school records would reflect that gender as well.

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18-13592 JORDAN, J., Dissenting 9

. . . Thus, unless there was a complaint, a transgender student could

use the restroom matching his or her gender identity until he or

she graduated and the school would be none the wiser.” Id. at

1306.

Given the testimony quoted above, the district court’s find-

ings of fact are well supported by the record and are not clearly

erroneous. See Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (“A

[factual] finding that is ‘plausible’ in light of the full record—even

if another one is equally or more so—must govern.”). And those

findings are significant. They establish that if a high-school

transgender student identical to Drew had registered in the St.

Johns County school system for the first time as an incoming trans-

fer student, his enrollment documents would have listed him as

male and he would have been allowed to use the boys’ bathroom

under the School Board’s policy.

If, as the majority says, gender at birth is the “driving force”

behind equal protection jurisprudence, the high-school

transgender transfer student described above is in all relevant re-

spects identical to Drew. Yet he would be treated differently and

allowed to use the boys’ bathroom even though he, like Drew, was

born female and presents the same purported safety and privacy

concerns that Drew allegedly does. This is irrational, and indefen-

sible under intermediate scrutiny.

The School Board, which shoulders a “demanding” burden

under intermediate scrutiny, see Virginia, 518 U.S. at 533, does not

and cannot explain, much less justify, this state of affairs. If the

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10 JORDAN, J., Dissenting 18-13592

means by which the School Board is attempting to enforce its inter-

ests in the safety and privacy of students ultimately undermines the

bathroom policy, I struggle to see how the policy passes constitu-

tional muster under intermediate scrutiny. Unfortunately, the ma-

jority is once again relegating a district court’s findings of fact to

the dustbin. See Schultz v. Alabama, 42 F. 4th 1298, 1336-42 (11th

Cir. 2022) (Rosenbaum, J., dissenting in part); Otto v. City of Boca

Raton, 41 F.4th 1271, 1285 (11th Cir. 2022) ( Jordan, J., dissenting

from the denial of rehearing en banc); United States v. Brown, 996

F.3d 1171, 1196–99, 1202–05 (11th Cir. 2021) (en banc) (Wilson, J.,

dissenting); Jones v. Governor of Fla., 975 F.3d 1016, 1066 (11th Cir.

2020) (en banc) ( Jordan, J., dissenting); Keohane v. Fla. Dep't of

Corr. Sec'y, 952 F.3d 1257, 1279 (11th Cir. 2020) (Wilson, J., dissent-

ing). That this keeps happening, in cases arising in every conceiv-

able procedural posture—preliminary injunction, evidentiary hear-

ing, trial—does not make it right.

Even if the district court had not made findings of fact on

how the bathroom policy applies to transgender students just like

Drew who enroll after transition, affirmance would still be in order.

First, as we have held sitting en banc, we review the judgment on

appeal and not the district court’s rationale. See, e.g., United States

v. $242,484.00, 389 F.3d 1149, 1153 (11th Cir. 2004) (en banc) (“A

bedrock principle upon which our appellate review has relied is that

the appeal is not from the opinion of the district court but from its

judgment.”) (internal quotation marks and citation omitted). Sec-

ond, we can “affirm the . . . judgment on any ground that appears

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18-13592 JORDAN, J., Dissenting 11

in the record, whether or not that ground was relied upon or even

considered by the [district] court[.]” Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). The majority says noth-

ing about these settled principles of Eleventh Circuit law.

The majority’s silence is all the more remarkable because,

just earlier this year, we held that we can take up, consider, and de-

cide a forfeited issue sua sponte to affirm a judgment if there are

so-called extraordinary circumstances. See United States v. Camp-

bell, 26 F.4th 660, 873 (11th Cir. 2022) (en banc). Here there is a

simple and sufficient ground—amply supported by witness testi-

mony and factual findings—on which to affirm the district court’s

judgment. We will be criticized, and rightly so, for selectively ap-

plying our precedent—when we approve of the result below, we

strain to find a way to affirm, but when the result is not to our lik-

ing, we do not consider alternative grounds on which to affirm.

C

“[R]eal issues must be dealt with at retail[.]” Alexander

Bickel, The Least Dangerous Branch 139 (Bobbs-Merrill Co. 1962).

Although the district court explained that “[t]his case is not about

eliminating separate sex bathrooms,” Adams, 318 F. Supp. 3d at

1317, the majority insists on discussing bathrooms at wholesale,

while addressing issues not presented by the case. So much for ju-

dicial restraint, whose “fundamental principle” is that “[i]f it is not

necessary to decide more to dispose of a case, then it is necessary

not to decide more.” Dobbs v. Jackson Women’s Health Org., 142

S.Ct. 2228, 2311 (2022) (Roberts, C.J., concurring). See Washington

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12 JORDAN, J., Dissenting 18-13592

State Grange v. Washington State Republican Party, 552 U.S. 442,

450 (2008) (“[C]ourts should neither anticipate a question of con-

stitutional law in advance of the necessity of deciding it nor formu-

late a rule of constitutional law broader than is required by the pre-

cise facts to which it is applied.”) (citation and internal quotation

marks omitted).

On the ground, the School Board’s restroom policy treats

physically-similar transgender students differently based solely on

their initial enrollment documents. And because the School

Board’s claimed safety and privacy concerns presented by someone

just like Drew are the same for similarly-situated high-school

transgender students who enroll with documents indicating their

current gender identity, the School Board’s claimed safety and pri-

vacy rationales go out the window. The only thing left to justify

the School Board’s refusal to accept new or revised enrollment pa-

perwork identifying Drew as male is administrative convenience,

and that does not satisfy intermediate scrutiny. See, e.g., Craig, 429

U.S. at 198; Wengler, 446 U.S. at 151–52.

Apparently understanding the difficulty posed by the School

Board’s reliance on enrollment documents, the majority says that

Drew did not challenge the constitutionality of the enrollment doc-

uments policy in the district court. That assertion, however, is the

proverbial straw man. At issue is the validity of the School Board’s

bathroom policy, and no one is claiming that the enrollment docu-

ments policy independently violates the Constitution. To satisfy

intermediate scrutiny, which is a “demanding” standard, the

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18-13592 JORDAN, J., Dissenting 13

“discriminatory means employed” must be “substantially related

to the achievement of those objectives.” Virginia, 518 U.S. at 533.

So the School Board must show that the means employed actually

further its asserted interests. Here the means chosen by the School

Board—the enrollment documents—actually undermine the

claimed safety and privacy interests for the bathroom policy and at

best amount to justification based on administrative convenience.

On this point the majority has no satisfactory answers.

To make matters worse for the School Board, its student da-

tabase already contains a pop-up window notifying teachers about

Drew’s “desire to be called upon with male pronouns.” D.E. 161 at

253. As the district court found, the School Board “has agreed to

treat [Drew] as a boy in all other respects, but its position is that

[his] enrollment documents and official school records identify him

as a female, and he has not presented any evidence that he is a ‘bi-

ological male.’” Adams, 318 F. Supp. 3d at 1308. If the School

Board’s own records already take into account Drew’s identifica-

tion as male, it is difficult to see why that same gender identifica-

tion could not govern for purposes of the bathroom policy. All it

would take is for the School Board to accept the new (or revised)

enrollment documents (such as a new form, a new birth certificate,

and a new driver’s license) identifying Drew as male. Because it is

already treating Drew as male for all other purposes, the School

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14 JORDAN, J., Dissenting 18-13592

Board can only rely on administrative convenience to refuse that

course of action for its bathroom policy.2

III

On this record, the School Board’s unwritten bathroom pol-

icy fails under intermediate scrutiny. The policy allows transgender

students just like Drew whose initial enrollment documents set out

their current gender identity to use the bathrooms associated with

that identity. Beca

This text is long and has been trimmed here. Open the source document for the complete record.