Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022)/Opinion of Judge Jordan
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, administrative convenience is an insufficient justification for a gender-based classification.[1]
I
Intermediate scrutiny requires a showing that the challenged classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” United States v. Virginia, 518 U.S. 515, 533 (1996) (internal quotation marks and citations 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 Supreme Court has held that a gender-based regulation cannot be justified 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 gender-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 operating by generalization or proxy”); Wengler v. Druggists Mut. Ins. 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 efficiency”).
This is not a controversial proposition. Scholars and commentators 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) (noting that the Supreme Court has “repeatedly concluded that administrative convenience served by use of [traditional gender] stereotypes 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 intermediate scrutiny.”).
II
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-neutral/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 student’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 gender 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 reflecting 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 continued to classify him as a girl for the purposes of its bathroom policy even after he (i) had transitioned socially at school (including using male pronouns), (ii) had a double mastectomy, and (iii) had 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 transition), 99–101 (medical transition), 108–110 (legal transition).
The problem for the School Board is that a transgender student 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 student, 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 director 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 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 violating your [restroom] policy because you would know; is that correct, ma’am?
A: I would go specifically by the paperwork. Whatever I see is what we would go by.
D.E. 161 at 205–06.
The testimony of Cathy Mittelstadt, the School Board’s deputy 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 characterized 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 female … 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.
Q: And what would that mean vis-à-vis bathroom usage?
A: Based on how they enrolled, they would have access 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 documents on the papers indicate male. And for purposes of St. Johns County’s way of determining biological sex, we have a male, but the student is actually a biological female.
Does that raise any concern from the district’s perspective, 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 district would have no reason to question that individual’s use of the boys’ bathroom, yes?
A: I agree with that, yes.
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 documents listing the gender that matches the student’s gender identity,” the School Board “will accept the student as being of that gender.” 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 identity, the student’s school records would reflect that gender as well. … 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 findings 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 transfer 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 respects 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 indefensible 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 means by which the School Board is attempting to enforce its interests in the safety and privacy of students ultimately undermines the bathroom policy, I struggle to see how the policy passes constitutional muster under intermediate scrutiny. Unfortunately, the majority 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., dissenting). That this keeps happening, in cases arising in every conceivable procedural posture—preliminary injunction, evidentiary hearing, 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). Second, we can “affirm the … judgment on any ground that appears 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 nothing 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 decide a forfeited issue sua sponte to affirm a judgment if there are so-called extraordinary circumstances. See United States v. Campbell, 26 F.4th 660, 873 (11th Cir. 2022) (en banc). Here there is a simple and sufficient ground—amply supported by witness testimony and factual findings—on which to affirm the district court’s judgment. We will be criticized, and rightly so, for selectively applying 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 liking, 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 judicial 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 State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (“[C]ourts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise 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 privacy rationales go out the window. The only thing left to justify the School Board’s refusal to accept new or revised enrollment paperwork 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 documents 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 documents policy independently violates the Constitution. To satisfy intermediate scrutiny, which is a “demanding” standard, the “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 database 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 ‘biological male.’” Adams, 318 F. Supp. 3d at 1308. If the School Board’s own records already take into account Drew’s identification as male, it is difficult to see why that same gender identification 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 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 policy 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. Because such students pose the same claimed safety and privacy concerns as Drew, the policy can only be justified by administrative convenience, which is constitutionally insufficient. And given that the student database already identifies Drew as male for all other purposes, it is difficult to understand why the School Board could not accept new or revised enrollment documents for Drew identifying him as male.
I would affirm the district court’s well-reasoned opinion and judgment on the equal protection claim, and therefore respectfully dissent.
- ↑ The district court awarded Drew the same damages for both the equal protection 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.
- ↑ The School Board has also instituted a policy creating a column on the “official student data panel” for “affirmed name.” D.E. 161 at 112. This affirmed column “populates [the school’s] grade book, … BASIS, which is [the school’s] information center, … another database called Virtual Counselor, so that … child’s affirmed name is changed on all those databases.” Id. at 113. The purpose of the affirmed name column is to inform teachers of a student’s preferred name when it may be different from the student’s legal name. See id. Though Drew did not change his name, this affirmed column shows that the School Board could easily go back into its databases and records to update information that is outdated and/or may be contrary to a student’s gender identity.