By: Sam Disario
Published On: January 25, 2024
Transgender Americans, in their fight for equality, have faced an onslaught of attacks. In 2023 alone, 576 anti-transgender bills have been brought in 49 states. Of these 576 bills, 83 have passed.[1] These anti-transgender bills cover various areas, including healthcare, legal recognition, and education.[2] One of the many avenues of attacks on transgender people takes place in bathrooms. Specifically, multiple states have passed laws banning transgender people from using the bathroom that corresponds with their gender identity.[3] These bans range from public K-12 schools to government-owned buildings.[4] The legality of these bathroom bans has found its way into court.[5] The Eleventh Circuit is the most recent court to tackle questions about transgender youth using the bathroom that corresponds with their gender identity in schools.[6] In ruling against transgender students, the Eleventh Circuit found that these bathroom ban laws are constitutional and do not violate Title IX.[7] Specifically, the court decided not to extend the reasoning in Bostock v. Clayton County, a historic ruling in 2020 where the Supreme Court held that Title VII applies to gender and sexual orientation, to Title IX and public school bathrooms.[8] This ruling comes in stark contrast to other circuit courts, namely the Second, Fourth, Seventh, and Ninth circuits, who have found that these bathroom bans in schools are unconstitutional.[9] The Fourth Circuit, in ruling that bathroom bans are unconstitutional, specifically mentioned Bostock and hung its decision on that pivotal case.[10] This circuit court split not only highlights that the legal path forward is unclear, but also that the overall path to transgender equality is stark with dissent. It is unclear whether the Supreme Court will tackle this circuit court split; in 2021, the Supreme Court refused to hear appeal arguments in Grimm, allowing for the Fourth Circuit’s decision to stand.[11] For now, it appears that this circuit court split will stand.
The passage of these anti-transgender laws has not come without consequence; in a new survey conducted by the Trevor Project, the leading suicide prevention organization for LGBTQ youth, found that “86% of transgender and nonbinary youth say recent say recent debates about state laws restricting the rights of transgender people have negatively impacted their mental health.”[12] Additionally, these anti-transgender bills have caused 45% of transgender and nonbinary youth to experience cyberbullying, 24% of transgender and non-binary youth to experience bullying at school, and 42% of transgender and non-binary youth to stop speaking to a family member.[13] The message is clear: harmful decisions like the Eleventh Circuit’s that aim to erase transgender students’ dignity, respect, and identity leave lasting harm on one of our nation’s most vulnerable populations. It is important that other circuit courts and the Supreme Court take up the issue of bathroom bans and find that Bostock’s reasoning is applicable to Title IX. Transgender people deserve to have their identities not only respected but seen, and we must protect our LGBTQ community by instead passing laws that signify that transgender and nonbinary Americans are seen, heard, valued, and respected, both in and outside of the bathroom and in all other areas of life.
[1] See Trans Legislation Tracker https://translegislation.com/ (last visited Oct. 14, 2023).
[2] See id.
[3] See Bans On Transgender People using Bathroom and Facilities According to Their Gender Identity, Movement Advancement Project (Oct. 11, 2023), https://www.lgbtmap.org/equality-maps/nondiscrimination/bathroom_bans.
[4] See id. (noting that Florida has made it a criminal offense “for transgender people to use bathrooms or facilities consistent with their gender identity.”).
[5] See generally Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020); see also Adams v. Sch. Bd. of St. Johns Cty. Fla., 57 F.4th 791 (11th Cir. 2022).
[6] See generally Adams, 57 F.4th at 791.
[7] Id. at 817.
[8] See id. at 808 (“Both Adams and the dissent rely on Bostock . . . to advance this faulty reasoning.”); see also Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020).
[9] See Khorri Atkinson, Transgender Bathroom Ruling Retains Uncertainty Over Path Forward, Bloomberg Law (Jan. 6, 2023, 5:40 AM EST), https://news.bloomberglaw.com/daily-labor-report/transgender-bathroom-ruling-retains-uncertainty-over-path-forward.
[10] See Grimm, 972 F.3d at 616 (quoting Fitzgerald v. Barnstable Sch. Comm., 129 S.Ct. 788, 797 (2009) (“Congress modeled Title IX after Title VI . . . and passed Title IX with the explicit understanding that it would be interpreted as Title VI was.”).
[11] See Denise Lavoie & Mark Sherman, Supreme Court won’t revive school’s transgender bathroom ban, Associated Press (June 28, 2021, 4:07 PM), https://apnews.com/article/us-supreme-court-courts-supreme-courts-government-and-politics-9b4cabc4e026d96d8f5492e03260985a.
[12] See Elliott Sylvester, New Poll Emphasizes Negative Impacts of Anti-LGBTQ Policies on LGBTQ Youth, The Trevor Project, (Jan. 19, 2023), https://www.thetrevorproject.org/blog/new-poll-emphasizes-negative-impacts-of-anti-lgbtq-policies-on-lgbtq-youth/.
[13] See id.