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Belmont Law Review

Abstract

In 2015, the St. Johns County School District adopted a policy which prohibited transgender students from using the restroom matching their gender identity and required that they use either single stall restrooms or the multi-stall restroom corresponding to their gender listed on their birth certificate (their “biological” sex). Similar policies targeting transgender students had been implemented by school districts across the country; and like many of them, St. Johns’ policy was quickly challenged by a transgender student who asserted that the policy violated his civil rights. In late December 2022, a divided Eleventh Circuit Court of Appeals, sitting en banc, issued its opinion in Adams ex rel. Kasper v. School Board of St. Johns County. Over the ringing dissents of four judges, the majority reversed both the district and appellate courts, which had ruled in favor of the student. Recasting the civil rights claims as an attempt to eliminate sex separated restrooms entirely, the en banc majority held that the school district’s restroom policy did not violate the Equal Protection Clause of the Fourteenth Amendment or Title IX of the Civil Rights Act. Two years earlier, in Grimm v. Gloucester County School Board, the Fourth Circuit Court of Appeals reached the exact opposite conclusion regarding a similar policy of the Gloucester County School Board that required students to only use restrooms matching their “biological gender.” That policy, a divided panel of the court concluded, constituted sex discrimination and violated both the Equal Protection Clause and Title IX. The school board’s motion for rehearing en banc was denied, and in June 2021, the Supreme Court similarly rejected its petition for certiorari (with Justices Thomas and Alito dissenting). The two cases have extraordinarily similar fact patterns and worked their way through the courts at the same time. This Article is organized chronologically, in an effort to more effectively reflect the nearly identical fact patterns, timelines, and intersecting opinions of these cases. Part I provides the factual background of both cases. Part II summarizes the substantial preliminary litigation in Grimm; Part III examines the district court ruling in Adams; Part IV analyzes the summary judgment ruling in Grimm. Part V covers Adams’ first appellate ruling; Part VI discusses the Fourth Circuit’s ruling in Grimm three weeks later, and Part VII considers the aftermath of that decision. Parts VIII and IX explore the second panel ruling in Adams and the majority and dissenting en banc opinions, respectively. Part X considers the significant lessons from all these opinions and analyzes the relative strengths and weaknesses of the arguments for expanding or restricting the LGBTQ rights.

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