On December 30, the United States Court of Appeals for the Eleventh Circuit handed down a major opinion in in Adams v. School Board of St. Johns County, Florida. The court ruled 7-4 against a statutory and constitutional challenge of a transgender student to a district policy requiring students to use bathrooms corresponding to their biological sex. Given the countervailing decision of the Fourth Circuit in G.G. v. Gloucester County, there is now a conflict in the circuits that could prompt a Supreme Court review. The Court expressly stated that it was not ruling on this question in its 2020 decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). …

It is a fascinating set of opinions (which also includes a dissent from Judge Rosenbaum). With the conflict with the Fourth Circuit, it would make for an ideal basis for the Court to consider the constitutional and statutory issues by granting a petition for writ of certiorari.

The accommodation of the gender neutral bathroom makes this policy particularly interesting for review. While some would argue that this amounts to a gender version of “separation but equal,” the district sought a middle position on the controversy. However, much turns on the definition of “sex” under Title IX.