The Bostock Slippery Slope: Girls Who Think They’re Boys Must Be Allowed to Use High School Boys’ Restroom, Appeals Court Rules

When the U.S. Supreme Court in this summer’s Bostock v. Clayton County decision redefined the word “sex” in the 1964 federal Civil Rights Act to include homosexual and transgender individuals for purposes of federal employment discrimination laws, the majority opinion by Justice Neil Gorsuch promised that the court was not dealing with the definition of “sex” under other laws, like Title IX, which prohibits sex discrimination in secondary schools.

But it was only a matter of time before the tortured textualism of Justice Gorsuch came back to haunt. The 11th U.S. Circuit Court of Appeals in Atlanta wasted no time recently in applying Bostock’s reasoning to Title IX, in a case from Florida involving a “transgender boy” (a biological female who thinks she’s a boy) who sued because her high school would not allow her to use the boys’ restroom.

In a 2-1 decision, the appeals court ruled that the school discriminated against the transgender student, who goes by the name Drew Adams, under the 14th Amendment as well as Title IX. The majority opinion, as it relates to Title IX, relies heavily on the Bostock opinion.

“Bostock confirmed that workplace discrimination against transgender people is contrary to law,” the majority opinion from Judge Beverly Martin, an Obama appointee, reads. “Neither should this discrimination be tolerated in schools. The School Board’s bathroom policy, as applied to Mr. Adams, singled him out for different treatment because of his transgender status. It caused him psychological and dignitary harm. We affirm the District Court’s ruling that maintaining this policy violated Title IX.”

The purpose of the 1972 Title IX addition to the 1964 Civil Rights Act was to level the playing field in schools for opportunities for women. Long forced to accept reduced funding for sports and other endeavors, Title IX introduced non-discrimination law into the field of secondary education in order to eliminate those sex-based disparities. But the law and the regulations that govern Title IX specifically state that schools may segregate facilities like restrooms and locker facilities on the basis of sex, recognizing the inherent need for privacy.

The 11th Circuit opinion buys into the fiction, and has now given it the force of law, that girls who think they are boys are, in fact, boys, for no other reason than that they say so. And vice versa. So by changing the definition of what makes a boy or girl from biology to subjective feelings, the appeals court majority opinion concluded that Title IX protects transgender boys and girls and allows them to use whatever restrooms and locker rooms they choose.

The dissenting judge, Chief Judge William Pryor, takes strong issue with the majority’s reasoning:

“[T]he St. John’s County School Board has long enforced a policy that separates the bathrooms in its elementary and secondary schools by sex. And yet the majority rules this policy illegal—indeed unconstitutional—in an opinion that distorts the policy, misunderstands the legal claims asserted, and rewrites well-established precedent. By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms. I dissent.”

Ed Whelan, President of the Ethics and Public Policy Center and former law clerk to Justice Antonin Scalia, thinks that Chief Judge Pryor’s dissent has the better of the arguments. “Let’s hope that the en banc Eleventh Circuit promptly corrects the panel’s serious errors,” he writes, alluding to the possibility that this decision may be reversed if and when the entire 11th Circuit complement of judges agrees to re-hear the case. This story will be updated when that occurs.

The decision does need to be reversed. Even the Bostock opinion didn’t go so far as to address the issue of sex-segregated bathrooms. Compassion and help are necessary tools for dealing with people suffering from gender dysphoria, but to reverse hundreds of years of sex-based privacy interests in education is a cheap solution that makes a mockery of both the rule of law and common sense.

The case is Adams v. School Board of St. Johns County.

Resources for families facing this issue

Focus on the Family: Transgender Resources

Parent Resource Guide: Responding to the Transgender Issue

When Transgender Issues Enter Your World

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