The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Court Upholds Biological-Sex-Based Access Rule for School Restrooms
Federal courts continue to be split on this question.
From today's decision by Judge Jodi Dishman (W.D. Okla.) in Bridge v. Oklahoma State Dep't of Ed.:
"Physical differences between men and women … are enduring" and the "'two sexes are not fungible….'" United States v. Virginia (1996). In fact, "sex, like race and national origin, is an immutable characteristic …." Frontiero v. Richardson (1973) (plurality opinion). With these principles in mind, the Court tackles a question that has not yet been addressed by the Supreme Court of the United States or the United States Court of Appeals for the Tenth Circuit: whether separating the use of male and female restrooms and changing areas in public schools based on a student's biological sex violates the Equal Protection Clause … or Title IX ….
{In Bostock v. Clayton County, Georgia, the Supreme Court held that an employer who fires an individual for being homosexual or transgender unconstitutionally discriminates against that person because of sex under Title VII. However, the Supreme Court also made clear that its opinion did "not purport to address bathrooms, locker rooms, or anything else of the kind."}
The court upheld Oklahoma's S.B. 615, which provides:
To ensure privacy and safety, each public school and public charter school that serves students in prekindergarten through twelfth grades in this state shall require every multiple occupancy restroom or changing area designated as follows:
- For the exclusive use of the male sex; or
- For the exclusive use of the female sex.
Each public school or public charter school in this state shall provide a reasonable accommodation to any individual who does not wish to comply with [these provisions]. A reasonable accommodation shall be access to a single occupancy restroom or changing room….
{"Sex" means the physical condition of being male or female based on genetics and physiology, as identified on the individual's original birth certificate.}
The court held that S.B. 615 doesn't violate the Equal Protection Clause:
[F]or a statute that classifies individuals based on sex to be constitutional, the classification must serve "'important governmental objectives'" and be "'substantially related to the achievement of those objectives'" [a test called "intermediate scrutiny" -EV]. {[T]he Court determines that intermediate scrutiny applies since S.B. 615 classifies individuals on the basis of sex, [so] it does not reach the issue of whether transgender status is a quasi-suspect classification.} To determine whether S.B. 615 survives intermediate scrutiny …, the Court must identify the State's reasons for enacting a sex-based classification. Then, the Court must ask whether the "reasons qualify as important governmental objectives and, if so, whether the gender-based means employed substantially serve those objectives."
The text of S.B. 615 makes its objective clear: to ensure students' privacy and safety from the opposite sex. Although Plaintiffs maintain that the Court must conduct fact finding to determine the validity of this objective, determining what is (and is not) an important governmental objective is a legal question.
Separating students based off biological sex (which both parties agree the statute does) so that they are able to use the restroom, change their clothes, and shower outside the presence of the opposite sex is an important governmental objective. "Understanding why is not difficult—school-age children 'are still developing, both emotionally and physically.'" And the Supreme Court has recognized the need for privacy between members of each sex in intimate settings. See United States v. Virginia (1996) ("Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements …."). It has also recognized the State's role in "maintaining … safety" "in a public school environment." Bd. of Educ. v. Earls (2002).
As Plaintiffs rightly state, "[a]ny law premised on generalizations about the way women are—or the way men are—will fail constitutional scrutiny because it serves no important governmental objective." However, S.B. 615 addresses much more than mere "generalizations" between males and females. Biological sex is distinct from gender generalizations, and "[u]se of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes."
Having established that Oklahoma has an important governmental interest in ensuring students are safe and have privacy from the opposite sex in restrooms, the Court turns to analyze whether S.B. 615 is substantially related to achieving that objective.
Here, the governmental interest is almost identical to the means used to protect the interest. Protecting students' safety and privacy interests in school restrooms and changing areas is undoubtedly closely related to the statute's mandate that all multiple occupancy restrooms or changing areas be for the exclusive use of either the male or female sex as determined by "genetics" and "physiology." The means by which the statute seeks to further that important governmental interest also make practical sense.
In addition to being an "unremarkable—and nearly universal—practice," separating restrooms based on biological sex establishes the clearest limiting principle regarding who can go in what restroom. Adams v. Sch. Bd. (11th Cir. 2022) (en banc). If the Court adopted Plaintiffs' position, any biological male could claim to be transgender and then be allowed to use the same restroom or changing area as girls. This is a major safety concern. The Court in no way suggests that Plaintiffs pose any safety risk to other students. It also does not cast any doubt on Plaintiffs' claims regarding the sincerity of how they identify, nor can it on 12(b)(6) review. However, if Plaintiffs' arguments were adopted, it would put school officials in the position of either having to conduct a subjective analysis of the sincerity of an individual's gender identity or merely take their word for it. Not to mention that if (biological) sex-based classifications such as S.B. 615 were deemed to be equal protection violations, no law recognizing the inherent differences between male and female would pass constitutional muster. This is an untenable position.
{In Grimm v. Gloucester Cnty. Sch. Bd. (4th Cir. 2020), the Fourth Circuit held that a restroom policy similar to the one here was "not substantially related to [the school board's] important interest in protecting students' privacy" because although students are entitled to privacy, allowing transgender students to use the restroom of their choice does not alter the amount of privacy students receive. ("Put another way, the record demonstrates that bodily privacy of cisgender boys using the boys restrooms did not increase when Grimm was banned from those restrooms. Therefore, the Board's policy was not substantially related to its purported goal."). But this ignores why laws such as S.B. 615 are being passed in the first place. As evidenced by its text, S.B. 615 seeks to ensure students' privacy in intimate settings from the opposite sex—not from other students in general.}
And the court held that S.B. 615 doesn't violate the federal Title IX statutory provisions:
Title IX requires that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…." However, "nothing contained [in Title IX] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes." "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex." …
So, since S.B. 615 separates students and the restrooms they are allowed to use based on biological sex, Plaintiffs can only prevail if "sex" under Title IX means the sex with which an individual identifies (i.e., their gender identity), not their biological sex. Accordingly, the Court must necessarily interpret what the word "sex" means in the context of Title IX.
To begin, the Court looks to ordinary public meaning of the word "sex" at the time Title IX was enacted in 1972. At that time, "virtually every dictionary definition of 'sex' referred to the physiological distinctions between males and females—particularly with respect to their reproductive functions." … [A]t the time Title IX was enacted, "sex" was defined by biology and reproductive functions.
Plaintiffs argue that if the Court focuses exclusively on the term "sex", then it will forget that "'[t]he question isn't just what 'sex' mean[s], but what [a statute barring sex discrimination] says about it.'" However, given the text of Title IX, which is different than that of Title VII [the statute considered in Bostock], the definition of "sex" is determinative. Title IX explicitly allows schools to "maintain[] separate living facilities" and "separate toilet, locker room, and shower facilities" for the "different sexes." Thus, if the term "different sexes" is referring to different biological sex, then Oklahoma's law is perfectly in sync with Title IX.
{Plaintiffs repeatedly argue that the "meaning of 'biological sex' is a politicized one, not one grounded in science." See Grimm (stating that the school board "rel[ied] on its own discriminatory notions of what 'sex' mean[t]" because it defined "sex" by referring to the anatomical and physiological differences between males and females); Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. (7th Cir. 2017) (concluding that biological sex is merely a "sex-based stereotype[]"). However, for the reasons stated previously and absent binding precedent to the contrary, the Court rejects the view that gender identity is synonymous with biological sex or that biological sex is a stereotype.}
At the time Title IX was enacted, the ordinary public meaning of "sex" was understood to mean the biological, anatomical, and reproductive differences between male and female. It is up to Congress to change that meaning, not this Court.
Defendants are represented by Zach West, Audrey Weaver, Kyle Peppler, and William Flanagan of the Oklahoma Attorney General's office.
