The Eleventh Circuit Grapples With Title IX, and the Equal Protection Clause, in the Wake of Bostock

Judge Martin and Chief Judge Pryor vigorously disagree over how to characterize a bathroom case from Florida.

|The Volokh Conspiracy |

On Friday, a divided panel of the Eleventh Circuit decided Drew Adams v. School Board of St. Johns County, Florida. This case found that Title IX requires a school to allow a transgender boy to use the boys' bathroom. Bostock did not decide this question. Justice Gorsuch insisted, "we do not purport to address bathrooms, locker rooms, or anything else of the kind." In dissent, Justice Alito seemed skeptical. He wrote:

Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person's claim to such bathroom or locker room access might not succeed.

Alito's dissent, which raised a parade of horribles, may come to resemble Justice Scalia's Windsor dissent. In the lead-up to Obergefell, district courts gleefully cited Scalia when they set aside state marriage laws.

Judge Martin wrote the majority opinion in Adams. Chief Judge Pryor wrote a vigorous dissent. Indeed, he wrote, "I dissent," rather than the traditional "I respectfully dissent." (I call these mic-drops disrespectful dissents). The majority and dissent disagreed on a basic question that affects the framing of both the Title IX issue, as well as the Equal Protection issue.

According to the majority, the school's policy singles out transgender students for special burdens. And, per Bostock, "sex" is an essential ingredient in that form of discrimination.

The School Board's bathroom policy singles out transgender students for differential treatment because they are transgender… identity." In this way, the policy places a special burden on transgender students because their gender identity does not match their sex assigned at birth. And, as this Court announced in Glenn, "discrimination against a transgender individual because of [his or] her gender-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender."5 663 F.3d at1317; cf. Bostock v. Clayton County, 590 U.S. ___,140S. Ct.1731, 1741(2020)(confirming that "it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex"). We therefore apply heightened scrutiny to the School Board bathroom policy.

Chief Judge Pryor views the case in a very different fashion: denying a student access to a bathroom based on his biological sex is not discrimination on the basis of transgender status. He writes:

To be sure, Bostock clarified that "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex" in the context of employment discrimination under Title VII. Id. at 1747; see also Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that discrimination based on gender nonconformity constitutes sex discrimination regardless of whether the victim is transgender or not). But this appeal concerns the converse question: whether discrimination on the basis of sex necessarily entails discrimination based on transgender status. Of course, a policy can classify on the basis of sex without also classifying on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, Bostock expressly disclaimed reaching any conclusion on the permissibility of sex-separated bathrooms and locker rooms. …. So the relevant question is whether excluding students of one sex from the bathroom of the other sex substantially advances the schools' privacy objectives. The question is not, as the majority frames it, whether excluding transgender students from the bathroom of their choice furthers important privacy objectives

As I read Pryor's dissent, the fact that Adams is transgender is irrelevant for the Title IX analysis. What matters is that the school has separated bathrooms by sex.

The majority opinion elides this entire analysis by misunderstanding both the classification and privacy interests at issue. It contends that the policy triggers heightened scrutiny not because it separates bathrooms by sex but because it purportedly imposes "differential treatment" on transgender students. Majority Op. at 12. In doing so, the majority misstates the school policy, conflates sex-based classifications with transgender-based classifications, and contravenes Supreme Court precedent. Compounding its errors, the majority then ignores fundamental understandings of why bathrooms are separated on the basis of sex by rejecting long-standing privacy rationales for sex-separated bathrooms.

The majority opinion says it is not necessary to define sex, because the discrimination was on the basis of transgender status.

Our dissenting colleague accuses us of shirking our duty because we do not delve into the meaning of "sex" in Title IX. To the contrary, we follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis as to Title VII. We need not interpret the term "sex" to recognize that Mr. Adams suffered discrimination at school because he was transgender.

The majority opinion adds that the dissent does not recognize what it means to be a transgender boy. Therefore, the dissent does not consider the relevance of Adams's transgender status:

The dissenting opinion's central flaw is that it does not meaningfully reckon with what it means for Mr. Adams to be a transgender boy…. Because the dissent does not consider Mr. Adams's transgender status analytically relevant, it expresses the view that allowing Mr. Adams to use the boys' restroom erodes restroom divisions for all. This argument cannot stand together with the fact, found by the District Court, that Mr. Adams is "like any other boy."

And, the majority contends, that the same but-for causation from Bostock resolves this case:

This being the Board's view, it argues that Mr. Adams was treated just the same as all girl students at Nease High School. But the School Board, like the dissenting opinion, misapprehends Bostock. Bostock explained that if an employer fires a transgender female employee but retains a non-transgender female employee, this differential treatment is discrimination because of sex. In the same way, Mr. Adams can show discrimination by comparing the School Board's treatment of him, as a transgender boy, to its treatment of non-transgender boys.

This dichotomy between the majority and the dissent dictates the outcome of the case. Martin and Pryor lay out the two positions cogently. They were writing about two completely different cases, like two ships passing in the night.

I am inclined to think Pryor was right, but I also thought Bostock was wrong. Indeed, throughout the opinion, I felt like Pryor was fighting with one hand tied behind his back–more precisely, Neil Gorsuch tied up that hand. The majority cited Bostock over and over again to promote a hyper-literal reading of Title IX, that rejected any extraneous evidence to give meaning to the statute–even as Pryor cited decades of precedent and practice that recognized the validity of sex-segregated bathrooms. Indeed, Pryor cites FN19 of United States v. Virginia, in which the Notorious RBG approved separating bathrooms based on physiological differences. (I flagged that opinion as grounds for her cancellation). He wrote:

Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex

I don't know how this case shakes out on appeal. Justice Gorsuch's textualism rejects "common sense." And Bostock and McGirt teach us that stare decisis only cuts in favor of Gorsuch's reading of statutes, and not against it. Plus, we know he is committed to but-for causation. But the bathroom case is different than Bostock because the segregation is expressly sex-based. Stay tuned.

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  1. Oh, Brave New World.

    This foolishness is not going to end well.

    1. Worse, it has gone on long and will not end at all.

    2. Do tell, Ed. Where does it end?

      1. The Supreme Court’s Bostock decision did not reject the biological meaning of sex; it merely said that transgender people can’t be fired for not conforming to expectations based on their biological sex, because that is penalizing someone for not conforming to a gender stereotype.

        But the 11th Circuit decision deals with bathrooms, which are a permissible area for taking sex into account both under Title IX regulation and 20 USC 1686, which create an express exception for permissible use of sex. That easily distinguishes the 11th Circuit case from Bostock, so Judge Pryor is right to dissent. When Title IX was enacted, sex meant biological sex. And that meaning must be enforced by courts, because the meaning of terms in a civil-rights law are based on their meaning when the law was enacted, not today. For example, Jews are covered by the race discrimination law 42 USC 1981, even though no one today thinks of Jews as a race, because when 42 USC 1981 was enacted, Congress thought that Jews were a race. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). Similarly, sex in the Title IX statute means biological sex, because that is what it meant to Congress and society back when Title IX was passed.

        Even if sex did mean transgender identity rather than biological sex, the 11th Circuit decision still got the Title IX issue wrong. If that were true, then the school district’s policy doesn’t discriminate based on sex, but rather biological attributes not covered by Title IX. Discrimination based on factors not covered by Title IX is not forbidden by Title IX. A school, for example, can assign a particular bathroom based on age or grade level (such as just for kindergartners) or other factors, without running afoul of Title IX, which only restricts sex discrimination, not non-sex-based discrimination. Civil-rights laws don’t create a right to privileges based on sex. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (Title VII creates no rights to sex-based or race-based preferences).

        1. So it ends with gender neutral bathrooms. Maybe via a misinterpretation of Title IX. OK.

          Thing is, somehow that’s not what Ed is referring to.

          1. Teenaged boys being what teenaged boys are, a half dozen (or more) will decide to declare themselves “male lesbians” as a dare. They then will not only be showering with the girls but admiring their bodies — with total impunity.

            30 years of dealing with teenagers tells me this will happen. And that the parents of the girls won’t be pleased.

            1. Our society has learned how to deal with malcontents and disingenuous, anti-social jerks . . . just look at how our bigots and clingers have been relegated to the fringe, to a point at which our bigots don’t even want to be known as bigots anymore.

              Don’t underestimate America’s liberal-libertarian mainstream, which has built a strong, resilient, decent, improving nation.

              1. Did you happen to read the Cape Elizabeth decision?

                1. No.

                  Did it decide that the tide had turned in the culture war?

                2. I just refreshed myself on which recent case that was, and I don’t see the relevance unless you’re just using it as a placeholder to say that in the aforementioned scenario, you’re going to end up with rapes.

              2. Except now we are encouraging the malcontents and disingenuous, anti-social jerks. This is a great example of that. We cannot kick them out, because they are protected now, due to YOUR rules.

        2. The real problem with Bostock is that it tried to address a mental issue as if it was a title 9 issue. All the will condoning a pseudoscience of mental illness.

          Either side of title 9 is totally irrelevant to addressing the true underlying issue

  2. Gender theory really is the creationism of the left isn’t it? At least in the case of creationism nobody was around 6000 years ago to say for sure what happened while Gender theory is proven wrong in front of your face every moment of the day.

    1. We have neuroscience now.

      Plus, there’s plenty of examples of cultures recognizing people outside of the gender binary.
      https://en.wikipedia.org/wiki/Gender_system#Non-European_gender_systems

      1. I agree completely, neuroscience shows sex is objective and hardwired from biology, there are huge fundamental and objective differences between males and females and there is no such thing as gender fluidity, the rainbow is actually two very large bins and a number of smaller rare ones that should be determined by medicine/science and not a facebook announcement and you can’t just change it by chopping off your privates and taking some hormones. Thanks for clearing that up.

        1. First, no. There are not only 2 big bins of brain-genders, where are you getting that? More importantly, along the continuum, there are some examples of individuals switching where they are in a non-continuous way from day to day.

          It also shows that the difference between nature and nurture in the brain are not so far apart – learned behaviors can cause measurably physical differences.

          Dunno where you’re getting your neuroscience, but I suspect it’s your hat.

          1. Sarc, you misread his comment. Deliberately?

            He did not say “only”. You added that. Strawman. He said 2 very large bins and a number of smaller rare ones.

            1. Fair put on the only, but my point is that it’s a continuum, versus his bins.

              1. It’s a continuum… with some really big bathtub curves at either end.

                1. Population-wise, maybe – I haven’t seen any population studies.

                  But in terms of allowable brain behavior, it’s a continuum.

                  1. I can buy 20 of the same type and brand of hammers from Lowes and technically say I bought 20 different kinds of hammers. But really for all intents and purposes I’ve only bought 1 type of hammer. The reality is there is two bins with a huge gulf between them separated by characteristic, objective, and fundamental differences. There are differences within these bins sure ie woman A might produce 0.01% more testosterone than woman B but they do nothing to change the reality of nature. We’ve done fine for billions of years with two sexes and it still serves us well in biology for the majority of animals with some exceptions. You go on twitter and see how unhappy the majority of bluecheck marks are to see how much ‘the rainbow’ brings to the table.

                    1. You’ve clearly read nothing on the subject.

                    2. Pray tell what (objective fact) in the literature contradicts what I said?

                    3. https://www.ncbi.nlm.nih.gov/pubmed/27113561

                      Spouting common sense in a science fight, eh?

                    4. That’s wrong.

                      The rest of the science is clear. There are two big bins.

                      Stop being anti-science.

                    5. Doesn’t sound like you’re citing anything scientific, PH2. Your fervent feeling is not science.

                  2. I’m not saying it’s not allowable. I’m saying that the bins are more statistically outsized than you are suggesting.

                    1. I was making no statement about the population’s distribution along the continuum.
                      As you can see above, Amos seems to be arguing against the existence of the continuum at all.

                      But as to your population distribution thesis, you could be right. Or you could be wrong. I’ve seen no science on it, and certainly don’t trust my gut on something like this.

          2. Science says there are 2 big bins.

            You dont hate science do you?

            1. You don’t know the science, do you?

  3. I remember when gender was a term of the grammarian’s art and largely ignored. Would that it were, still.

    1. If you want an interesting bit of history reading check out the guy who hijacked the term gender and what happened to the people he applied his new theory to. Not something you’ll learn in Gender 101.

  4. So, if I understand the ‘transgender’ aspect of Bostock, it’s now contrary to title IX to impose any consequences on somebody for lying about their sex, because you have to take their sex into account in order to know it was a lie.

    1. What sort consequences are there?

      1. What sort of consequences are there usually, for lying on an employment application?

        1. Gender is not the same as work experience.

          Why would someone being one gender versus another matter on an employment application?

          I can think of 2 issues.
          Gender-based affirmative action, in which case the question of lying becomes one of sincerity, not the facts presented here.
          Gender-based discrimination, in which case the issue is with the employer, not the employee.

          1. Say you are hiring someone to assist women in the proper fitting of a bra. How do you think it would affect your business if you gave that job to a person who presents as a male, but declares that they are female?

            1. This is just the old ‘I need to kowtow to my no-doubt prejudiced customer base’ excuse. That hasn’t flown since the 1960s.

              1. You think it is prejudice that makes a woman not want a strange man fondling their breasts?

                1. Of course he does!

                2. No more so than a strange woman fondling their breasts.

                  I don’t think a bra fitting is quite like you picture it to be…

              2. This is just the old, “I’m going to screw with everybody else’s lives, and yell that they’re bigots if they complain”.

                1. Yeah, we all know you hate the CRA.

                  1. And we know you hate women and science.

              3. No, its the old “let’s protect against bad people and follow science” reason.

                You’d prefer women be molesting by men, because of what the men say.

                You are anti-science and anti-feminism.

            2. I’d say you should focus more on their ability to help women get fitted for a bra (including “bedside manner”, so-to-speak) and less about whether you think they fit your stereotypes of what men and women should look like.

          2. BFOQs? Did you leave those out on purpose?

            1. When is biological sex a BFOQ?

              1. Modeling? It would be very weird for biological men to model women’s lingerie, and not very useful for women trying to imagine how it might appear on a woman (ie,themself).

                1. That’s about body shape not specifically gender, though, isn’t it?

  5. We now have a Supreme Court that says, in the same opinion, that men are women, and women are men, and they have to be treated the same, but you have to determine if a person is a man or a woman to determine if they were discriminated against.
    Welcome to the revolution.

    I guess we have to become the first nation to write into it’s constitution that, in fact, men are men and women are women, and no law can say otherwise.

    1. No, the Supreme Court’s Bostock decision doesn’t say that. But the majority on the 11th Circuit panel does endorse reasoning is as absurd as that. Both the majority and dissenting opinions in Bostock were plausible; but the 11th Circuit decision is just wrong. The Title IX regulation expressly permits — but does not require — sex-based classifications for bathrooms, and Title IX does not create sex-based entitlements to bathroom access, it merely limits the use of sex classifications. Courts have ruled that civil-rights laws like Title VII and Title IX don’t create race or sex-based entitlements, see Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997). Bostock didn’t say biologically female “transgender men” are men for purposes of Title IX, which was passed back when sex clearly meant biological sex to the law’s sponsors (civil rights laws’ terms are interpreted based on their meaning as of the time such laws were passed, not today, see the Supreme Court’s Shaare Tefila decision; the Supreme Court’s Bostock decision merely said you can’t generally penalize transgender people for not acting in accord with their biological sex. But bathroom classifications are the subject of an express Title IX exemption, via regulation, and 20 USC 1686. Bostock didn’t reject the biological basis of sex, it just limited penalizing people who don’t act in accord with their biological sex. But here, the bathroom regulation itself carves an exemption.

  6. Can the schools dodge the question of sex by simply labeling the doors “Penis” and “No Penis”? Sex and orientation don’t matter.

    A friend told me, “My daughters have the right to shower without having penises waving in their faces.” That’s the only real issue here.

    1. I would say just label everything XX and XY. The very fact XX can get pregnant means that is a distinction with a difference and therefore it passes the rational basis test.

      That said the long term solution is more privacy for everyone and perhaps doing away with gym class and high school sports. So in a city like NYC in which students can take public transportation high school is already more like junior college and parents don’t obsess over the local high school football team or basketball team or volleyball team. So once autonomous vehicles become safe I would have high school be more like community college along with a robust online component.

      1. I guess they were right, the internet doesn’t make people more stupid, it just makes their stupidity more visible.

        https://en.wikipedia.org/wiki/Intersex

        1. Or what about conjoined twins of opposite genders?? The ADA covers people with actual medical conditions nitwit.

    2. Well, maybe.
      However, since ‘same sex attracted’ persons can shower with those they are attracted to, how is it not discrimination to prohibit ‘opposite sex attracted’ persons from showering together?

      1. Anyone that supports the status quo is an idiot…especially in light of the trend with respect to bathrooms and locker rooms being clearly towards more privacy. Why men find it acceptable to pee in a trough at a sporting event elbow to elbow with other men is beyond me…I could see why men at The Manhole would like that bathroom setup though. 😉

    3. Can the schools dodge the question of sex by simply labeling the doors “Penis” and “No Penis”?

      Nope. Web search (if you hate yourself enough) the phrase “some women have penises” to see why that won’t work.

      Well… hrm. It might work, I suppose, since they wouldn’t be saying anything about gender or sex at all, merely the presence of a particular organ. But I suspect that The Usual Suspects would not find it acceptable.

    4. Pretty sure that “having penises waving in their faces” is sexual harassment at the least, so don’t sons also have the right to not have that happen? Or are you conflating “there’s a penis hiding somewhere in this room, I just know it” with “waving int heir faces”?

      Seriously, I’ve been in plenty of locker rooms. I have never had a penis waved in my face. Somehow the men around me have managed to resist the urge. The idea that those same men would lose control if there was a woman in the room and suddenly all start waving their penises in her face (I assume step ladders are used) is rather, well, sexist, no? Says a lot about how you view men.

  7. This isn’t just about public bathrooms.

    There are students raised on testosterone competing in “women’s sports” where, surprise, they can run faster, lift more, and hit harder than those raised on estrogen. Considering college scholarships, endorsement deals and such, the real-world stakes in sports are much higher.

    The irony is that the main purpose of Title IX is to get girls into sports. Decisions like these, made in the name of Title IX, will once again make it nearly impossible for people raised on estrogen to compete, thereby effectively repealing Title IX.

    1. I’m just waiting for the lawsuits over the Title IX equity scholarships — the “non-cis-gendered” females (or whatever we are permitted to call them this week) *are* better athletes and would merit the scholarship on that basis. On the other hand, the biological females are the ones for whom Title IX intended the scholarships — there will be lawsuits between the T and L as to who is and who isn’t a woman.

      In a macabre way, I find this all quite hilarious because the biggest problem has been the elimination of the less well known *male* sports in the name of Title IX compliance — college women are less interested in athletics than male students and hence a lot of male students are being denied the ability to play a sport because not enough women want to.

      1. Do you like it when the gladiators wrestle??

        The irony I see is that in American bathrooms and locker rooms we already have people physically attracted to others of the same sex in those rooms!?! So the solution is more privacy for everyone. Furthermore our public bathrooms are suboptimally designed with respect to public health and the solution is more privacy which disease spread through flushing and poo plumes.

        1. Do you have any idea what would be happening in private showers in a high school?

          1. Ed,
            Let Being Be.

          2. High school bathrooms have stalls. College dorms have private showers in communal bathrooms. In the 1990s the old college gym at my college had a bathroom with toilets with no stalls…the trend is towards more privacy and not less. How can hetero men support the status quo when gay men are in the catbird seat?? Plus daddy daughter day is more difficult with gender based bathrooms…to say nothing of how unhygienic our public bathrooms are currently due to stalls only being partial and poo plumes filling the air.

            1. A lot of high schools have removed the doors from the bathrooms.

              It isn’t just smoking (and not just tobacco) and drinking but outright drug use. You are responsible for those little darlings, you have to prevent them from doing it. And even “good” high schools have IV drug use now — IV drug use.

              And then they’ll be having sex and/or committing rape and not only is there no way to avoid the liability of the latter (remember, these are minors that you are responsible for) but parents don’t like the former.

              And then you’ll have fights and assaults — why do you think there are so many cameras in the hallways now — and while you can’t put a camera in there, you can put a teacher.

              College is different — they are adults. Not so in K-12.

              1. Everyone I knew in PE in high school hated it so if I had my way I would just get rid of it and that solves most of the problems. I would also get rid of foreign language classes because the dumbest person in Mexico speaks better Spanish than the guy I know that took Spanish at supposedly the top Spanish language college department.

    2. Well, since the Communist Chinese Virus will kill off all sports, that is moot.

  8. Under this regime, how can any male be denied access to the female bathrooms and showers?

    Ones belief about themselves cannot be observed or verified.

    1. Worse, throw in yesterday’s asinine Cape Elizabeth decision and male students will have a “free speech” right to discuss the female bodies that they are showering with.

      There is a reason why I think that decision was wrong.

  9. We have no constitution — it had been repealed by a death of a thousand idiotic cuts.

    Laws that have no concrete meaning and change based upon whim mean nothing (and everything)

    1. Area Man Passionate Defender Of What He Imagines Constitution To Be.

      1. You are right, busted — buggery and showering with chicks: totally the reason for the American Revolution. Freedom of speech, religion, and making a buck?? — MEH.

        The right to kick your A$$? There in that penumbra — the government sees it!

        1. To a transgender, this is freedom.

          But keep on with your tantrum about how everything you don’t like makes America illegitimate.

          1. And to a pedophile a day care is a dating service.

            1. Comparing transgender people to pedophiles in order to declare that the Constitution is over does not really disabuse my of my initial post that you are a passionate defender of what you imagine the Constitution to be.

              1. No, it’s a super-secret text only specially chosen gnostic judges can see and interpret.

                Progressivism is a cult — your religion SUCKS

                1. You keep comparing liberalism to a religion, but when I bring things like science or the actual Constitution into the picture, you retreat to insults and dogmatically repeating your thesis over and over again. Like a chant, or a ritual.

                  1. You haven’t brought any science to the argument, nor the Constitution. Scientism that supports your viewpoint, yes, and a deflection in your opinion on what is freedom to transgenger folks. Pretty presumptuous, that. Do you know all the transgender people, or, like any quasi-religious group, you just decide that you speak for each and all? This is one of the reasons people say your in-group is a cult. This, and this shared mindset, purity controls, refusal to accept new information -dogmatic repetition of phrases of pseudoscientific terms and utter nonsense that supports the in-group eorldview. Honestly, the one thing that holds you together is putting other people down. Other people are anti-science. Other people are classist, entitled, privileged. Other people don’t engage with the argument, but attack the person. That is a lie.

                    1. I was referring to a contemporaneous discussion on a different thread.

                      Don’t need to speak for every transgender to take issue with comparing them to pedophiles.

                      Look at how people here talk about Roberts and then think about purity controls.

  10. I think both the majority and dissent miss the mark.

    The majority said, “we follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis [the meaning of sex] as to Title VII.” But as Hans Bader pointed out in comments in this thread, that’s factually in error. The Bostock majority assumed “that sex […] referr[ed] only to biological distinctions between male and female.” The only thing Bostock informs us about this case is that but-for his sex being female, Drew would have been able to use the boy’s bathroom. But, the same conclusion applies to cisgender girls.

    On the other hand, the dissent improperly discards relevant differences between transgender and cisgender girls, and summarily concludes that all applications of sex-segregated bathrooms permissibly further privacy interests. As Marty Lederman persuasively argues, sex-segregated bathrooms should be presumptively viewed as unlawful discrimination, with the burden placed on the government to justify the classification as being non-discriminatory. Lederman concludes, again persuasively, the government meets that burden as applied to cisgender girls, but not transgender girls because the harm only done to the latter outweighs the government’s privacy interests.

  11. School Districts: “Fuck it, we give up, all bathrooms and locker rooms are unisex.”

  12. There is no such thing as gender identity. It is a left wing construct designed to overthrow society with degenerate ideas.

  13. Of course, both the OP and the commenters fail to notice that the majority repeatedly and explicitly says they are not holding that sex-segregated bathrooms violate Title IX or the Equal Protection Clause. The issue is what happened with this one boy. This one boy, by the way, whom the State of Florida itself officially recognizes as a boy and whom the United States Government does (or would) as well. The school takes the sex listed on enrollment documents as determinative. They admitted at oral argument that if someone in the middle of transitioning enrolled with the sex listed (on their enrollment documents) as being the one to which they were transitioning, their bathroom policy would not apply to that student. So you’d have one transgender student using their preferred bathroom and another prohibited from using their preferred bathroom simply because of their enrollment documents. Students aren’t allowed to *change* those documents, even if they have been allowed to change their state driver’s license.

    This is a much less radical decision than people are making out. Read the fucking opinion before commenting, people.

    1. The school offered her a single stall restroom that she could have used, the same with Gavin Grimm v Gloucester in a similar case.

      A reasonable person would have accepted the offered accomodation and gotten on with his or her life. However, its much more fun file federal lawsuits, drag it out for years, and draw mass amounts of attention to yourself.

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