The battle over bathrooms

I think and write about gender often. I mostly write about issues specific to females, but I fully understand that gender issues extend far beyond my gender. It's a complex topic. Today, I want to think and write about bathrooms, and more specifically, whether the segregation of bathrooms by sex discriminates against transgender people.

The battle over bathroom segregation is not new. At one point in our history, public bathrooms were segregated by race. That practice was dismantled during the civil rights era with the Civil Rights Act of 1964.

Now, in 2022, segregating bathrooms by sex is being challenged. Why does society divide bathrooms by sex? Law school was the first time I thought about this question, and the recent 11th Circuit decision makes me think about it again.

On the second to last day of 2022, the 11th Circuit sitting en banc issued its order upholding a Florida school board's policy that requires transgender students to use the bathroom that corresponds to their sex at birth. The plaintiff challenged the policy as violating the 14th Amendment's equal protection clause and Title IX.

The policy itself is messy. It is an unwritten policy that says male students must use the male bathrooms and female students must use the female bathrooms. For the purposes of implementing the policy and determining a student's sex, the School Board distinguishes between boys and girls based on biological sex and relies on various documents (like birth certificates) that students submit when they first enroll in the school district. The policy purports to accommodate transgender students by providing for special, separate, gender-neutral restrooms.

About the plaintiff: Drew Adams first enrolled in the school district in fourth grade when he identified as his biological sex at birth: female. Around eighth grade, the plaintiff began identifying as a boy and using the pronouns he/him. As part of his gender transition, he obtained revised government documentation, including a revised birth certificate that changed his sex. But, importantly, for the purposes of its policy, the School Board does not allow updates to the enrollment documents to conform to a student's change in gender identity. Side note: the constitutionality of the enrollment document policy was not initially challenged and instead was raised for the first time during the en banc proceedings--in other words, too late.

The 11th Circuit's majority opinion holds that the policy does not violate the 14th Amendment or Title IX. Under the 14th Amendment's Equal Protection Clause, a law that discriminates on the basis of sex is subject to "intermediate scrutiny." Intermediate scrutiny requires a law to?"(1) advance an important governmental objective and (2) be substantially related to that objective." If the law can satisfy both prongs, the law is constitutional.

In arriving at its conclusion, the 11th Circuit reasoned that the bathroom policy passes intermediate scrutiny. The important governmental objective? Protecting students' privacy in school bathrooms. Substantially related? Yes, the court says the policy is almost the mirror image of the policy's "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."

The most interesting point comes from Judge Jordan's dissent. Judge Jordan notes that the bathroom policy is based on documentation submitted when a student enrolls, and so, if a student had already fully transitioned and then enrolled in the school district with documents listing him as male, he would be able to use the bathroom that matches his current gender identity--not his biological sex. Judge Jordan says given that the fully-transitioned but later-enrolled student and Drew would pose the same threat to privacy, the policy can only be justified as an administrative convenience--a constitutionally impermissible objective for gender-based classifications.

Ultimately, this decision is probably not the last word. I expect the issue to go up to SCOTUS. Given today's SCOTUS, the 11th Circuit's ruling would likely be upheld. But, the 11th Circuit's decision and the bathroom policy raise many interesting questions about society's decision to segregate bathrooms by sex, including but not limited to why we do it, whether it serves a valid (let alone constitutional) objective, and whether the practice will continue into the future. Here's a link to the opinion (as well as the concurrence and dissents) for those interested: