Annamaria Crone | Do Transgender Bathroom Bills Violate Title IX and 14th Amendment Equal Protection?

Background

There is almost nothing more contentious in the American legal, political, and cultural systems than public education. Public schools have been the sites of major legal battles, including free speech rights, school segregation, religious freedom, and now transgender rights. This series of litigation was sparked by the many states that have banned transgender students from accessing a bathroom consistent with their preferred gender identities in K-12 schools. These state laws and school board policies require students to use a bathroom that either corresponds with their biological sex or a single-stall restroom.

To overturn these policies, transgender students have invoked both the Equal Protection Clause of the 14th Amendment and Title IX of the Education Amendments of 1972 (“Title IX”) to claim they are being discriminated against on the basis of sex. Legal analysis of these claims already requires multiple levels of analysis, which every court has struggled to determine since the ratification and passage of both laws. Transgender rights present yet another layer of depth.

The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To determine whether a law or policy violates the Equal Protection Clause, a court must determine what level of scrutiny applies and then ask whether the law or policy survives such scrutiny. Grimm v. Glouster Cnty. Sch. Bd., 972 F.3d 586, 607 (4th Cir. 2020). Discrimination on the basis of sex is widely held to be an intermediate level of scrutiny. See Miss. Univ. For Women v. Hogan, 458 U.S. 718 (1982). To meet this level of scrutiny, a party seeking to uphold a statute that classifies individuals on the basis of their sex must show an “exceedingly persuasive justification” for this classification and law. See id at 724.

Title IX provides that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). To satisfy a Title IX claim, three elements must be met: (1) there was discrimination on the basis of sex, (2) the educational institution received federal funding at the time, and (3) that improper discrimination caused harm. Grimm, 972 F.3d at 616. In cases involving a transgender student’s ability to use their preferred bathrooms in a public high school, the second element is met. However, the courts are split on whether discriminating on the basis of sex equals discriminating against transgender persons.

Both legal challenges are highly complex, with Circuit Courts split on almost every level of legal analysis, including the most fundamental of questions of whether these policies violate the Equal Protection Clause and discrimination under the meaning of Title IX. These cases are fraught with legal questions, each with important consequences for the future of discrimination on the basis of sex, the basic definition of “sex,” transgender rights, and how to argue Equal Protection and Title IX claims.

Issue

Does a policy requiring students to use bathrooms based on their biological sex violate the Equal Protection Clause and constitute discrimination of the basis of sex in violation of Title IX?

Circuit Split

Fourth Circuit

Grimm v. Glouster Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020).

In Grimm, the court held that a school board policy requiring students to use either a bathroom that corresponded to their sex at birth or a single stall restroom both violated the Equal Protection Clause and constituted discrimination on the basis of sex under Title IX. 972 F. 3d at  594.

              In deciding the Equal Protection claim, the court found that on its face, the school board policy creates a sex-based classification for restrooms. Id. at 608. Importantly, the court also held that discrimination on the basis of sex automatically includes discrimination against transgender persons. Id. This is because such policies punish transgender persons for gender non-conformity, which relies on sex stereotypes. Id. The court then reasoned that the policy failed the intermediate scrutiny test, holding that the school’s policy was not substantially related to the important stated purpose of upholding a student’s privacy when using the bathroom. Id. at 613. Factual support that the bodily privacy of cisgender boys using the restroom did not increase when the transgender student was banned from using the men’s restroom was vital in the court’s decision. Id. 

In determining the Title IX claim, the court found that the policy discriminated on the basis of sex, which satisfies the first element. The court found that in discriminating against a person for being transgender, the discrimination is necessarily referring to the individual’s sex to determine the difference between sex and gender, making it impossible to discriminate against a person for being transgender without discrimination against that individual based on sex. Id. at 616. Important to this holding was the Supreme Court case of Bostock v. Clayton County, in which the Court stated “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton County, 590 U.S. 644 at 660 (2020). The court also held the record showed enough harm to the transgender student to satisfy the third element, including being isolated when using the single-stall restroom and unable to use any bathroom at extracurricular events like football games. Id. at 618.

Important to this case was the determination that discriminating against transgender persons was an almost-automatic discrimination on the basis of sex. This categorization triggered both intermediate scrutiny on the Equal Protection claim and the Title IX claim.

Eleventh Circuit

Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022) (en banc).

              In Adams, the court found that a school policy requiring all students to use a bathroom that aligned with their sex at birth did not violate a transgender student’s equal protection rights nor did such a policy violate Title IX’s protections. 57 F.4th at 800.

              Crucial to the equal protection claim in Adams was the fact the court held the bathroom policy advances the important government objective of protecting students’ privacy in school bathrooms and does so in a manner substantially related to that objective. Id. at 803. This is a direct split with the 4th Circuit Grimm case, which was decided only two years earlier. The court found the school’s bathroom policy was a direct manifestation of the objective of protecting the privacy interests of students to shield their bodies from the opposite sex in the bathroom. Id. at 805. Thus, the school’s bathroom policy passed the intermediate scrutiny test. Id. Additionally, the 11th Circuit interpreted Bostock v. Clayton County differently. Although the court agreed that discrimination against transgender persons do constitute discrimination on the basis of sex, it does not agree that facial discrimination on the basis of sex automatically discriminations against transgender persons. Id. at 809. Here, the court held the bathroom policy separates students on the basis of biological sex, which does not automatically discriminate against transgender students. Id.

              Furthermore, when deciding the Title IX claim, the Court relied on an express carve-out in the statute. Id. at 811. Title IX allows schools to separate on the basis of sex concerning living facilities. Id. The court did not need to determine whether the three elements of a Title IX claim were met because bathrooms are included in the living facilities exception. Id.

              Overall, the 11th Circuit was clear in its definition of sex, which according to the court does not automatically include transgender persons. In addition, there is a direct split on whether the privacy interest of students in the bathroom is enough the pass intermediate scrutiny for an equal protection claim.

Other Circuits:

Tenth Circuit:

Bridge v. Okla. State Dep’t of Educ., 711 F. Supp. 3d 1289 (10th Cir. 2024).

              This Circuit’s ruling concerned a law requiring that multiple occupancy restrooms and changing areas in public schools serving students in K-12 schools be separated exclusively based on students' biological sex as identified on their original birth certificate. The court held the law did not violate the equal protection of the transgender student nor did the law discriminate on the basis of sex in violation of Title IX.

Seventh Circuit:

A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760 (10th Cir. 2023).

              This court ruled a transgender male student was entitled to both a preliminary injunction against a school policy that restricted the students' use of the men’s bathrooms and that the student made a strong showing of likelihood of success on merits of their Title IX claim against the school district for purposes of the students' motion seeking preliminary injunction.

Third Circuit:

Doe by and through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3rd Cir. 2018).

              Cisgender high school students brought action against school district and school officials alleging that district's policy of allowing transgender students to access bathrooms and locker rooms consistent with their gender identity violated their constitutional rights of bodily privacy, as well as Title IX. The court ruled the students were unlikely to succeed on merits of their Title IX claim.

Looking Forward

Circuit Courts are split on multiple legal questions presented in these cases, especially in the legal analysis required for both an Equal Protection claim and a Title IX claim. Perhaps in future cases, the Supreme Court will clarify the meaning of “sex” when concerning the 14th Amendment and Title IX or clarify its ruling in Bostock v. Clayton County. Or perhaps the court will clearly detail whether a privacy interest in bathrooms is enough to satisfy intermediate scrutiny. The biggest question remains whether the definition of “sex” will continue to fold in transgender persons or if it will remain with its traditional binary definition. The Circuit Courts certainly have different opinions on the matter.

              Cases concerning transgender rights are almost certainty going to come before the Supreme Court. In fact, the case of West Virginia v. B.P.J., concerning transgender persons competing in sports, was argued in January 2026. The case concerns both an equal protection claim and a Title IX claim, which will undoubtably deal with the definition of “sex” as it relates to transgender persons. In this case, the definition of sex will almost certainly be tested by the Court.

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