The Oklahoma Bar Journal September 2022

the privacy of other students was impacted in any way by allowing transgender students to use the bathroom associated with their gender identity. 42 As to Mr. Grimm’s Title IX claims, the court concluded, rely ing on Bostock , that a bathroom policy prohibiting a transgender student from using the bathroom applicable to their gender identity constitutes discrimination on the basis of sex. 43 In determining that Mr. Grimm had suffered harm as a result of the bathroom policy, the court relied on this country’s history of racially segregated bathrooms and concluded, “The stigma of being forced to use a separate restroom is likewise suf ficient to constitute harm under Title IX.” 44 The court acknowl edged that Title IX allows for separate toilet, locker room and shower facilities on the basis of sex and reasoned that Mr. Grimm was not challenging the existence of sex-segregated bathrooms but his exclusion from the sex-segregated bathroom corresponding with his gender identity. 45 Other courts have also addressed the issue of transgen der students and school bathroom policies, where the school policy allowed transgender students to use the bathroom based on their gender identity rather than their biological sex. Cisgender 46 stu dents brought a lawsuit against the school district seeking a prelimi nary injunction against the school district’s policy of allowing trans gender students access to bath rooms and locker rooms consistent with their gender identity, alleging the policy violated their rights and Title IX. 47 The court denied the request for a preliminary injunc tion, finding that the school dis trict’s policy was thoughtful and carefully tailored to address real issues while maintaining a safe

bathroom. The 11th Circuit granted rehearing en banc and conducted oral argument on Feb. 22, 2022. The United States Department of Justice was granted leave to appear and participated in oral argument in support of Drew Adams’ claims. A ruling should be forthcoming. Shortly after the initial 11th Circuit decision in Adams , the 4th Circuit issued a decision in Grimm v. Gloucester Cnty. Sch. Bd . 39 In 2015, Gavin Grimm, then a student at Gloucester County High School whose biological sex is female but who identified as male, sued the Gloucester County School Board alleging violations of the Equal Protection Clause and Title IX. The school originally allowed him to use the boys’ bathroom, but after the board faced significant backlash from parents, it adopted a policy that students could only use the bathroom matching their biologi cal sex. 40 Mr. Grimm also alleged the board violated the Equal Protection Clause and Title IX by refusing to amend his school records despite amending his birth certificate to reflect that he was male. 41 In 2020, the 4th Circuit ultimately determined the board’s bathroom policy violated Mr. Grimm’s equal protection rights because the bath room policy was a sex-based clas sification and transgender persons are a quasi-suspect class. Thus, for the bathroom policy to withstand scrutiny, it must have been substan tially related to a significant govern mental interest. The board argued the policy was applied equally to all persons and was necessary to protect the privacy of all students. The court rejected these arguments and noted the information provided by both the board as well as various amici curiae , including other school boards and school administrators, did not support the argument that

important governmental interest in protecting student privacy but was arbitrary in its administration and thus not sufficiently related to the indicated governmental interest. 34 Relying on Bostock , the court also concluded that Title IX prohibits discrimination against a transgen der person because such discrimi nation is on the basis of sex. 35 In its revised decision, the pan el’s previous opinion was vacated and replaced in “an effort to get broader support among our col leagues …” 36 The revised opinion does not discuss Mr. Adams’ Title IX claim and solely addresses one ground under the Equal Protection Clause. Accepting as legitimate the government interest of student bodily privacy when using the restrooms by main taining sex-separate restrooms, the court concluded the school district’s bathroom policy failed because it was based on the student’s sex indicated on the student’s enrollment documents, even if the student later provided documents showing a different sex. Thus, “The bathroom policy does not apply to all transgender students equally.” 37 The court also concluded the policy was imper missibly arbitrary because the school district refused to change any official records or consider any other government documents reflecting a student’s sex after the student enrolled. 38 In discussing the harm Mr. Adams suffered, the court recognized the stigmatiza tion and shame he experienced from not being permitted to use the boys’ restroom while at school. Twenty-two states and Washington, D.C., filed amicus curiae briefs in support of Mr. Adams. Conversely, 18 other states, includ ing Oklahoma, filed an amicus curiae brief in support of the school dis trict’s policy preventing the trans gender student from using the boys’

SEPTEMBER 2022 | 17

THE OKLAHOMA BAR JOURNAL