Adams v. Sch. Bd. of St. Johns Cnty. (318 F. Supp. 3d 1293, 2018)

TIMOTHY J. CORRIGAN, United States District Judge

The parents of St. Johns County, along with teachers and administrators of the St. Johns County School District, have a solemn obligation to guard the well-being of the children in their charge. As recent events from around the country have tragically demonstrated, this is a very challenging job. Recognizing the difficulty of this task and that local school boards, answerable to the citizens of their community, are best situated to set school policy, federal courts are reluctant to interfere. Nevertheless, the federal court also has a solemn obligation: to uphold the Constitution and laws of the United States. That is why federal courts around the country have recognized the right of transgender students to use the bathroom matching their gender identity.

Drew Adams is a rising senior at Allen D. Nease High School. He is transgender, meaning he "consistently, persistently, and insistently" identifies as a boy, a gender that is different than the sex he was assigned at birth (female). At trial, Adams testified: "I am a boy and I know that with every fiber of my being." However, when the principal of Nease was asked whether she considered Adams to be a boy, she replied, "I do not." That's what this case is about. Everyone agrees that boys should use the boys' restroom at Nease and that girls should use the girls' restroom. The parties disagree over whether Drew Adams is a boy.

I can only answer that question with the evidence given to me at trial. Drew Adams says he is a boy and has undergone extensive surgery to conform his body to his gender identity; medical science says he is a boy; the State of Florida says so (both Adams' Florida birth certificate and Florida driver's license say he is a male); and the Florida High School Athletic Association says so. Other than at his school, Adams uses the mens' bathroom wherever he goes, including in this federal courthouse during trial. Even the St. Johns County School Board regards Adams as a boy in every way, except for which bathroom he can use.

When confronted with something affecting our children that is new, outside of our experience, and contrary to gender norms we thought we understood, it is natural that parents want to protect their children. But the evidence is that Drew Adams poses no threat to the privacy or safety of any of his fellow students. Rather, Drew Adams is just like every other student at Nease High School, a teenager coming of age in a complicated, uncertain and changing world. When it comes to his use of the bathroom, the law requires that he be treated like any other boy.

The Court recognizes that some will disagree with this decision, for religious and other reasons. I respect their point of view. However, as a judge, my job is to determine what the law requires and apply it faithfully to the facts. I have done that to the best of my ability.

I. Procedural History

Through his next friend and mother, plaintiff Drew Adams, a minor, filed suit in June 2017 (when he was a rising junior at Nease) under 42 U.S.C. § 1983, alleging that the School District violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, U.S. CONST. amend. XIV, § 2, and Title IX, 20 U.S.C. § 1681, by refusing to let him use the boys' bathroom at school. See Doc. 1 (and as amended, Doc. 60). Soon thereafter, he filed a motion for preliminary injunction seeking to enjoin the School Board (the School District's governing body) from continuing its policy during the pendency of the case. Although the Court denied his motion, it set an expedited schedule so the matter could quickly be brought to trial. See Docs. 50, 57 (Order and hearing transcript). The Court held a three day non-jury trial on December 11, 12, and 13, 2017, hearing testimony from ten witnesses and admitting numerous exhibits. Two witnesses were unable to appear live and the Court agreed to accept their videotaped deposition testimony and a declaration from one. The parties also stipulated to certain facts that are deemed admitted. A month after the trial (and while school was out of session), the undersigned toured Nease High School with the school principal and counsel for both sides, visiting every restroom on campus. Thereafter, the parties submitted proposed findings of fact and conclusions of law and supplemental briefs addressing the School Board's bathroom policy. See Docs. 172, 173-1, 174, 175. The Court heard closing arguments on February 16, 2018. Doc. 184. While the Court has adopted portions of each party's submission, the Court's findings of fact and conclusions of law are its own. Several pending motions were carried with the case, and those rulings are incorporated herein.

II. Findings of Fact

A. Defining Transgender/Gender Identity/Sex Assigned at Birth

As explained by Dr. Diane Ehrensaft, a developmental and clinical psychologist who studies and specializes in treating transgender children and adolescents, there are a number of components that determine a person's gender: external genitalia, internal sex organs, chromosomal sex, gonadal sex, fetal hormonal sex, hypothalamic sex, pubertal hormonal sex, neurological sex, and gender identity and role. Doc. 166, Ct. Ex. 3 at ¶ 20. Among these markers, external genitalia, the most physically obvious one, has historically been used to determine gender for purposes of recording a birth as male or female. Id. at ¶ 19. In most people, all the markers, including external genitalia, lead to a singular conclusion that an individual is either a male or a female. Doc. 166, Ct. Ex. 3 at ¶ 19. Sometimes, though, they are not congruent, with some indicators suggesting the individual is female, and others male. Id. at ¶ 20. In this situation, neurological sex and related gender identity are the most important and determinative factors. Id.

The Medical Amici explain that " '[g]ender identity' refers to a person's internal sense of being male, female, or another gender." Doc. 119, Ex. A at 6. A transgender individual is someone who " 'consistently, persistently, and insistently' identifies as a gender different than the sex they were assigned at birth."Id. at 7. A 2016 publication estimated that 1.4 million transgender adults are living in the United States, 0.6 percent of the adult population. Id. at 4. "Gender identity is distinct from and does not predict sexual orientation; transgender people, like cisgender [non-transgender] people, may identify as heterosexual, gay, lesbian, bisexual, or asexual." Id. at 4-5.

"[M]any transgender individuals are diagnosed with gender dysphoria, a condition that is characterized by debilitating distress and anxiety resulting from the incongruence between an individual's gender identity and birth-assigned sex." Id. at 7. Gender dysphoria is recognized by the Diagnostic and Statistical Manual of Mental Disorders. Id. at 8. According to the Medical Amici, the World Professional Association for Transgender Health ("WPATH") has established the accepted standard of care for transgender persons suffering from gender dysphoria, and it "includes assessment, counseling, and, as appropriate, social transition, puberty-blocking drug treatment, hormone therapy, and surgical interventions to bring the body into alignment with one's gender identity." Id. at 10-11.

Social transition "typically includes publicly identifying oneself as that gender; adopting a new name; using different pronouns; grooming and dressing in a manner typically associated with one's gender identity" (Id. at 11); changing sports teams to be consistent with one's gender identity (Doc. 166, Ct. Ex. 2 at Tr. 23); "and using restrooms and other single-sex facilities consistent with that identity." Doc. 119, Ex. A at 11. Transgender students typically seek privacy and discreteness in restroom use and try to avoid exposing any parts of their genitalia that would reveal sex characteristics inconsistent with their gender identity. Doc. 166, Ct. Ex. 3 at ¶ 49. The Pediatric Endocrine Society states that not allowing students to use the restroom matching their gender identity promotes further discrimination and segregation of a group that already faces discrimination and safety concerns. Doc.

151, Pl. Ex. 47.

The Endocrine Society Clinical Practice Guideline considers the standard of care for some adults and adolescents with gender dysphoria or who seek gender affirmance to include hormone treatment which, for a transgender male, will alter the appearance of the genitals, suppress menstruation, and produce secondary sex characteristics such as increased muscle mass, increased body hair on the face, chest, and abdomen, and a deepening of the voice. Doc. 151, Pl. Ex. 30 at 18-19. Surgical interventions (including a double mastectomy and chest reconstruction for transgender men (sometimes referred to as "top surgery") and/or genital surgery) may be appropriate and medically necessary for some patients, but may be delayed until the age of legal majority because, unlike the other treatments, they are largely irreversible. Id. at 26; Doc. 119, Ex. A at 13. Before the medical profession gained its current understanding of gender identity, some practices involved attempts to force transgender people to live in accordance with the sex assigned to them at birth, but those attempts failed and caused significant harm. Doc. 119, Ex. A at 5.

B. Drew Adams

When Adams was born in 2000, he had the external genitalia of a female, and indeed, his parents had been told they were expecting a girl. Doc. 160-1 at Tr. 84; Doc. 161 at Tr. 31. His Florida birth certificate recorded his sex as "female." Doc. 160-1 at Tr. 83; Doc. 170, Def. Ex. 145 (under seal). From a young age, Adams' parents noticed that Adams rejected what they describe as stereotypically feminine behaviors and attributes, such as playing with dolls, favoring the color pink, or wearing dresses; instead, Adams preferred playing with toy race cars and dinosaurs, and going to the science center. Doc. 160-1 at Tr. 217-18; Doc. 161 at Tr. 87. Nonetheless, Adams was a happy and smart child. Doc. 160-1 at Tr. 81, 189. In middle school, however, as Adams started going through puberty, he "hated" the developing feminine parts of his body. Id. at Tr. 89-91. Adams began to show signs of depression and anxiety and in early 2015, Adams' parents brought him to a mental health therapist as well as a psychiatrist. Id. at Tr. 89-91, 215-16.

At the end of eighth grade, a few months after he began his therapy, Adams realized that he was transgender and came out to his parents, who already suspected as much. Doc. 160-1 at Tr. 219; Doc. 161 at Tr. 87. Adams and his parents met with Adams' therapist seeking guidance. Doc. 160-1 at Tr. 220-21. Adams' therapist confirmed that Adams was transgender, and Adams began implementing the social transition to present as a male, which included cutting Adams' hair short, wearing a chest binder (a garment which flattens the breast tissue) and masculine clothing, asking people to switch to male pronouns when referring to him, and using the men's restrooms when in public. Id. at Tr. 95, 101. When Adams uses the men's restroom, he walks in and enters a stall, closes and locks the door, relieves himself, exits the stall, washes his hands, and leaves. Id. at Tr. 202.

Adams' psychologist determined he met the criteria for gender dysphoria, and in May 2016, she supported his request to begin treatment with an endocrinologist for his medical transition, which included taking birth control to halt menstruation and testosterone to make his body more masculine. Id. at Tr. 98-100; Doc. 151, Pl. Ex. 134. In May 2017, Adams had a double mastectomy. Doc. 160-1 at Tr. 105.

Adams has also worked on the legal transition. The Florida Department of Highway Safety and Motor Vehicles follows the recommendations of the WPATH in establishing procedures for changing gender on Florida driver's licenses, requiring a statement from a medical provider that the applicant is undergoing clinical treatment for gender transition. See Doc. 147, Ex. A (Florida Driver License Operations Manual) at LR07.2b. Within certain guidelines, the Florida Department of Health, Office of Vital Statistics accepts supporting authenticated medical documentation to amend the sex designation on birth certificates. See Fla. Admin. Code Ann. R. 64V-1.003(2) (2004). Adams followed these procedures, and his Florida driver's license and Florida birth certificate both now record his gender as "Male" or "M." See Doc. 151, Pl. Ex. 3; Doc. 169, Pl. Ex. 4 (under seal).

According to Adams' mother, coming out brought on "an absolutely remarkable" change in Adams. Doc. 160-1 at Tr. 220. "He went from this quiet, withdrawn, depressed kid to this very outgoing, positive, bright, confident kid. It was a complete 180." Id. As Adams testified, with every step of the transition, he feels even better: "I don't hate myself anymore. And I don't hate the person I am. I don't hate my body anymore. There are some parts I don't like, of course, but I don't look at myself and think all those negative thoughts anymore." Id. at Tr. 106. Adams only sees his therapist now on an as-needed basis, less often than he previously did, and he is not taking any medications for anxiety or depression. Id. at Tr. 131, 188.

Adams is excelling academically in high school, is enrolled in the International Baccalaureate program, and is a member of the National Honor Society. Id. at Tr. 214-15; Doc. 162 at Tr. 129-130. He spends his summers volunteering at area hospitals and is involved in a number of organizations that serve the LGBT community. Doc. 160-1 at Tr. 124-25. Adams plans to attend college upon graduation and aspires to become a doctor. Id. at Tr. 81.

C. The St. Johns County School District and Its Transgender and Bathroom Policies

The St. Johns County School Board is responsible for providing "proper attention to [the] health, safety, and other matters relating to the welfare of students." Fla. Stat. § 1001.42(8)(a). The St. Johns County School District educates approximately 40,000 students in 36 different schools, serving grades K-12. Doc. 161 at Tr. 254-55. An enrollment packet is assembled for each new student. Id. at Tr. 229. Part of that packet is the School District's student information/entry form, which includes a box to check whether the student's gender is "male" or "female," as does the Home Language Survey form. Doc. 170, Def. Ex. 142 & 143 (under seal). The paperwork includes a state health form, which has a space to indicate a student's "sex." Doc. 170, Def. Ex. 144 (under seal). The enrollment packet also includes a copy of a student's birth certificate, which, for Florida, lists the student's "sex." Doc. 170, Def. Ex. 145 (under seal). The School District uses these documents to record a student's gender in its files. Doc. 161 at Tr. 205. If a student later presents a document, such as a birth certificate or driver's license, which lists a different gender, the original enrollment documents control. The School District will not change the official school records. Doc. 162 at Tr. 12-13. But, if a transgender student initially enrolls with documents listing the gender that matches the student's gender identity, the School District will accept the student as being of that gender. Id. at Tr. 35. The School Board is aware of approximately sixteen transgender students in its schools, some of whom would like to use restrooms which match their gender identity. Id. at Tr. 106-07. The principal at Nease is aware of five transgender students at Nease, including Adams. Id. at Tr. 136.

According to the School Board Attorney, and as affirmed by the School Board Chair, for as long as anyone can remember, the unwritten School District bathroom policy was that boys will use the boys' restrooms at school and girls will use the girls' restrooms at school, using those terms as traditionally defined based on biological traits. Id. at Tr. 45-46; Doc. 184 at Tr. 11-12. As a long-time school official explained, students of one "biological sex" have never been permitted to use the restroom of the opposite "biological sex." Doc. 161 at Tr. 149-50. The school bathroom policy has been enforced through the student code of conduct, and a student could be subject to discipline for failing to abide by the bathroom policy. Id. at Tr. 227-28; Doc. 162 at Tr. 17-18; Doc. 152, Def. Ex. 65 (St. Johns County School District student codes of conduct, 2015-2018).

Beginning in 2012, the (now retired) Director of Student Services worked with LGBTQ students, attended and sent staff to LGBTQ conferences, and researched school policies in other school districts in Florida and elsewhere to educate herself and the School District about emerging LGBTQ issues. Doc. 161 at Tr. 146-47. She formed a task force which consulted with district administrators, principals, attorneys, guidance counselors, mental health professionals, parents, students, members of the public, and LGBTQ groups in St. Johns County and elsewhere. Id. at Tr. 150-52, 158-59, 161-62, 174-80. The result was a set of Best Practices Guidelines adopted by the School Superintendent's Executive Cabinet and introduced to school administrators in September 2015. Id. at Tr. 242-45.

The Best Practices Guidelines were formed with the community's values in mind (described by the School Board Attorney as trending conservative), and they provide guidance to faculty and staff to address numerous issues related to LGBTQ students. Doc. 162 at Tr. 32-33, 86. Under the Best Practices Guidelines, upon request by a student or parent, students should be addressed with the name and gender pronouns corresponding with the student's consistently asserted gender identity; school records will be updated upon receipt of a court order to reflect a transgender student's name and gender; unofficial school records will use a transgender student's chosen name even without a court order; transgender students are allowed to dress in accordance with their gender identity; students are permitted to publicly express their gender identity; and the school will not unnecessarily disclose a student's transgender status to others. Doc. 152, Def. Ex. 33; Doc. 151, Pl. Ex. 138 at Request for Admission # 51. The Best Practices Guidelines also provide that "[t]ransgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex." Doc. 152, Def. Ex. 33 at 1. The document further states that "[t]here is no specific federal or Florida state law that requires schools to allow a transgender student access to the restroom corresponding to their consistently asserted transgender identity." Id.

In formulating their recommendations for the Best Practices Guidelines, the LBGTQ task force was aware that some other school districts, including in Florida, have adopted policies permitting transgender students to use the restrooms consistent with their gender identity. Doc. 161 at Tr. 215-16. However, the task force did not recommend that alternative for the St. Johns County School District due at least in part to concerns about how to handle gender-fluid students (those whose gender changes between male and female) or those pretending to be gender-fluid, although the task force had not heard of any such incidents. Id. at Tr. 215-17.

According to the School Board Attorney, the gender-neutral bathroom option was added to the Guidelines and is now part of the school policy as a reasonable alternative for transgender students so they would not be required to use the bathroom of their sex assigned at birth. Doc. 162 at Tr. 61-62. The School Board's position is that this approach reconciles the interests of transgender students without violating the School Board policy of having separate bathrooms for boys and girls. Id. at Tr. 62. The retired Director of Student Services also explained that the Best Practices Guidelines accommodate gender-fluid students while protecting against the possibility that students might claim to be gender-fluid to gain access to the bathroom of the opposite sex. Doc. 161 at Tr. 216.

Several months after the School District implemented the Best Practices Guidelines, the United States Departments of Education and Justice issued guidance ("the 2016 Guidance") that the term "sex" under Title IX included gender identity. Doc. 152, Def. Ex. 84. The 2016 Guidance directed that schools that provide sex-segregated restrooms, locker rooms and shower facilities must allow transgender students to use those facilities consistent with their gender identity. Id. at 3. In response, the School District issued a statement through its Superintendent that it disagreed with that guidance and intended to continue following its long-standing bathroom policy as supplemented by the Best Practices Guidelines, which it believed to be lawful and provided a reasonable accommodation. Doc. 162 at Tr. 75-78. In February 2017, the Departments of Education and Justice withdrew the 2016 Guidance, explaining that it had not undergone any formal public process and had been issued without extensive legal analysis or explanation as to how it was consistent with Title IX. Doc. 152, Def. Ex. 237.

Incorporating both the long-standing unwritten School Board bathroom policy and the Best Practices Guidelines, the current policy in St. Johns County public schools for grades four and up is that "biological boys" may only use boys' restrooms or gender-neutral single-stall bathrooms and "biological girls" may only use girls' restrooms or gender-neutral single-stall bathrooms, with the terms "biological boys" and "biological girls" being defined by the student's sex assigned at birth, as reflected on the student's enrollment documents. Doc. 162 at Tr. 45-46, 62, 71; Doc. 161 at Tr. 248. The School Board Attorney explained that the bathroom policy comports with the Board's overall responsibility for student welfare, which, in the case of bathrooms, principally involves concerns for privacy and safety. Doc. 162 at Tr. 110-11.

With regard to privacy, the School Board seeks to preserve the privacy of individuals using the restroom facilities, but admits that the bathroom stall doors provide privacy for anyone inside a stall. Id. at Tr. 114. The retired Director of Student Services who led the LGBTQ task force explained the privacy concerns:

[W]hen a girl goes into a girls' restroom, she feels that she has the privacy to change clothes in there, to go to the bathroom, to refresh her makeup. They talk to other girls. It's kind of like a guy on the golf course; the women talk in the restrooms, you know. And to have someone else in there that may or may not make them feel uncomfortable, I think that's an issue we have to look at. It's not just for the transgender child, but it's for the other.

Doc. 161 at Tr. 213. The School District's Deputy Superintendent for Operations raised similar points, saying a student may want privacy to undress or clean up a stain on her clothing. Id. at Tr. 248. The School Board Attorney also explained that allowing a transgender student to use a restroom that conformed to his or her gender identity could create opportunities for students "with untoward intentions to do things they ought not to do," although the School Board has never received any complaints of untoward behavior involving a transgender student. Doc. 162 at Tr. 112-13.

As for the safety aspect, the School Board seeks to assure that members of the opposite sex are not in an unsupervised bathroom together, citing as an example the risks of danger posed to a female freshman student who might find herself alone in the restroom with an 18-year old male student. Id. at Tr. 69, 111, 115. A related concern raised by the retired Director of Student Services was that under a relaxed policy, a student-a football player for example-could pose as being gender-fluid for the purpose of gaining access to the girls' restroom, but the school would have no way to know whether his belief that he is gender-fluid is sincere. Doc. 161 at Tr. 213. However, the task force's research did not reveal any actual situations where a problem like that occurred. Id. at Tr. 213.

The retired Director of Student Services also expressed concern for the safety of transgender students, worrying that they might be bullied or assaulted or ridiculed by other students if they are in the bathroom that matches their gender identity. Id. at Tr. 217. While the School Board's code of conduct would address any violations, by keeping boys and girls separate in the unsupervised restrooms, the School Board seeks to minimize the opportunity for any such violation to occur. Doc. 162 at Tr. 115. However, the School Board is not aware of any bullying violations involving a transgender student in any St. Johns County School District restroom, id. at Tr. 115, nor did the task force hear of any such incidents in other school districts involving transgender students using the restroom that aligned with their gender identity. Doc. 161 at Tr. 219-20. Moreover, the retired Director of Student Services acknowledged that for a transgender student who has made the social transition and whose appearance is consistent with his or her gender identity (for example, a transgender girl whose hair is long, whose breasts are enhanced, who is wearing lipstick), there may be safety, security, and privacy concerns if that student used the restroom that is consistent with the sex the student was assigned at birth; thus, she thought it would be preferable if such a student used a gender-neutral single-stall bathroom. Id. at Tr. 207-09; 217-18.

Additionally, if a transgender student enrolled in the St. Johns County School District having already changed their legal documents to reflect their gender identity, the student's school records would reflect that gender as well. Doc. 162 at Tr. 35. The school district has no process to determine if a student is transgender. Doc. 161 at Tr. 235. As the School Board Attorney said, "[t]he district does not play bathroom cop," and it accepts the information on the enrollment documents at face value. Doc. 162 at Tr. 53. Thus, unless there was a complaint, a transgender student could use the restroom matching his or her gender identity until he or she graduated and the school would be none the wiser. Id. at Tr. 35-36, 53. The School Board Attorney testified that he thought that scenario would be a rare occurrence and, if it became a problem, the School Board could re-examine the practice of using self-identifying enrollment documents to determine gender. Id. at Tr. 54-55. However, he agreed that at this point, the School District would have no occasion to question a student who used a restroom consistent with the gender recorded on the student's enrollment documents. Id. at Tr. 89.

The Nease campus is spread over several buildings. There are four sets of multi-stall, sex-segregated bathrooms available during class time to the school's 2,450 students. Id. at Tr. 131-32. An additional set is available in the locker rooms for use by students while taking physical education classes. Id. at Tr. 131. Discounting the locker room, there are a total of ten bathroom stalls available in the boys' restrooms on the Nease campus. Id. at Tr. 133. All of the boys' restrooms have a set of urinals and stalls with doors. The urinals in the boys' restrooms are not divided by partitions, although a school official said perhaps they could be. Id. at Tr. 32. The campus additionally has eleven gender-neutral single-stall bathrooms in various locations which are open to any student or staff member. Id. at Tr. 134. A multi-stall boys' restroom and a multi-stall girls' restroom are accessible to students in the cafeteria area, but there is not a gender-neutral bathroom in that area and during certain lunch periods, students who wish to use a gender-neutral bathroom must ask permission to leave the area. Doc. 160-1 at Tr. 279-80.

The undersigned visited Nease and toured all of the bathrooms on campus. While they were clean, most of the multi-stall single-sex restroom facilities were dated and there were not nearly enough bathrooms for boys or girls considering the number of students at Nease. The school principal said there are often lines to use those bathrooms. The gender-neutral bathrooms were generally more modern than the multi-stall single-sex bathrooms. Some of Nease's classrooms are in portable buildings. There are no gender-neutral bathrooms or faculty bathrooms near those classrooms, and the multi-stall single-sex bathrooms there have very few stalls. The principal said that faculty assigned to teach in the portable classrooms sometimes use the multi-stall single-sex bathrooms. The undersigned observed that the boys' locker room is an open space with no room for privacy while changing. There is a bathroom available in the coach's office, but the principal said it is not available to use for changing. The boys' locker room shower is an open space with several shower heads and no curtains or dividers. The showering space is visible to other areas of the locker room.

D. Adams' Experience with the Bathroom Policy at Nease High School

School enrollment documents show that Adams enrolled in the St. Johns County School District as a female entering the fourth grade at PV/PV Rawlings Elementary in 2010. See Doc. 170, Def. Ex. 142, 143, 144 (under seal). During the summer of 2015, before Adams began high school at Nease, Adams' mother informed the student services department that Adams was transitioning and would be attending high school as a boy. Doc. 160-1 at Tr. 251-52. When Adams began school in August, he presented as a boy and used the boys' restroom when needed without incident. Id. at Tr. 253. One day in September approximately six weeks after school started, Adams was called out from his classroom and told by his guidance counselor that someone had complained about him using the boys' restroom and that, going forward, he could use the gender-neutral bathroom in the school office. Id. at Tr. 114-15, 253. Adams was also advised that he could use the girls' restroom, something he found insulting. Id. at Tr. 117-18. It was not a boy or a boy's parents who had complained. Rather, it was two unidentified female students who reported that they had seen Adams entering the boys' restroom. Doc. 162 at Tr. 16-17.

To Adams, the school's refusal to let him use the boys' restroom meant that the school did not see him as a boy, and refused to accept who he was. Doc. 160-1 at Tr. 116. As Adams testified, "I was living in every aspect of my life as a boy and now they're taking that away from me." Id. Adams said he was confused, shocked, and angered by the school's reaction. Id. at Tr. 115-16. The school agreed to provide gender-neutral restrooms which Adams has used as necessary. Id. at Tr. 172-73. Adams would be subject to disciplinary action if he used the boys' bathroom. Doc. 162 at Tr. 17-18. Over the course of Adams' freshman and sophomore years, Adams' mother met with various school and District personnel, sent them letters and emails, and pursued a complaint with the U.S. Department of Education's Office of Civil Rights; by the end of his sophomore year when those efforts had not resulted in any change to the school bathroom policy, Adams, through his mother, filed this lawsuit. Doc. 160-1 at Tr. 254-60.

For some of Adams' classes during his junior year, the gender-neutral bathrooms were considerably further away than the boys' restrooms. Id. at Tr. 117, 119, 122-24, 176-79. Adams monitors his fluid intake to minimize his need to use the restroom and he now uses the school bathroom only once or twice a day. Id. at Tr. 118-19, 172. Adams thinks ahead about where his classes are and which bathrooms he can access, worrying he will miss valuable class time if a gender-neutral bathroom is not nearby. Id. at Tr. 118-19. Adams' has not registered for any physical education classes while at Nease (students enrolled in the International Baccalaureate program are not required to take physical education classes), and Adams did not testify about the school policy with respect to the locker rooms, which are only available to students taking physical education classes. Doc. 171, Def. Ex. 42 & 43 (under seal); Doc. 162 at Tr. 131.

Adams testified that he feels alienated and humiliated, and it causes him anxiety and depression to walk past the boys' restroom on his way to a gender-neutral bathroom, knowing every other boy is permitted to use it but him. Doc. 160-1 at Tr. 116-17. Adams thinks it also sends a message to other students who see him use a "special bathroom" that he is different, when all he wants is to fit in. Id. at Tr. 205.

There were no reported instances of privacy breaches during the time Adams used the boys' restroom at Nease. Although no one other than the two female students ever complained about Adams' use of the boys' bathroom at Nease, the parties stipulated that certain parents and students in the School District object to a policy or practice that would allow students to use bathrooms in accordance with their gender identity as opposed to their sex assigned at birth, because they believe such a practice would violate the bodily privacy rights of students and raises privacy, safety and welfare concerns. Doc. 116 at § I, ¶ 3 (p. 22). The School District has agreed to treat Adams as a boy in all other respects, but its position is that Adams' enrollment documents and official school records identify him as a female, and he has not presented any evidence that he is a "biological male." Doc. 161 at Tr. 229-36, 253; Doc. 162 at Tr. 12-13, 35-36; Doc. 173-1 at ¶¶ 42-43. The School District maintains that Adams is welcome to use the gender-neutral bathrooms or the girls' bathroom. Doc. 161 at Tr. 250-51. But he cannot use the boys' bathroom.

E. Schools With Policies Permitting Transgender Students To Use The Bathroom that Aligns With Their Gender Identity

The Court heard testimony from three school administrators familiar with other schools that have adopted the transgender bathroom policy that Adams is advocating. Broward County, also in Florida, has a public school policy that permits students to use gender-neutral restrooms as well as the restrooms that match their gender identity. Doc. 151, Pl. Ex. 66 at 40-41. Unlike St. Johns County, Broward County also has a human rights ordinance that prohibits discrimination based on gender identity. Id. at 16. Michaelle Valbrun-Pope, the Executive Director of the Student Support Initiatives for Broward County Public Schools (the sixth largest school district in the nation), testified that she is aware of nine other Florida school districts that have implemented some of their policies with regard to transgender students. Doc. 161 at Tr. 65-66. Valbrun-Pope testified that Broward County Schools' transgender bathroom policy, which has been in effect for about five years, has not caused any issues related to safety or privacy. Id. at Tr. 64-65. She testified that she has never heard of a transgender student exposing himself or herself in the restroom and that doing so would be inconsistent with aligning themselves with their gender identity and being accepted as that gender. Id. at Tr. 65.

Michelle Kefford, a principal at a high school in Broward County who also works district-wide answering questions about the district's LGBTQ policies, has worked with about a dozen transgender students over the years, and her high school presently has two transgender students out of a population of about 2,600. Id. at 106, 109-110, 117. Once a transgender student comes forward to identify herself or himself, an adult staff member meets with the student to discuss a variety of issues, including whether the student wants to be called a different name, whether the student's family is aware of the situation, whether a referral to any outside resources would be helpful to the student or the family, whether the student has disclosed his or her gender identity to others, whether the student is engaged in extracurricular activities or sports where support may be needed, and what restroom the student wants to use. Id. at Tr. 111-12; Doc. 151, Pl. Ex. 66 at 49-51. Broward County Public Schools do not require any legal documentation such as a birth certificate to permit students to be treated consistent with their gender identity, and students need only identify themselves as transgender to have access to the restroom that corresponds to the gender identity they assert at school. Doc. 151, Pl. Ex. 66 at 35-36, 40-41.

Kefford testified that no students or parents have complained about transgender students in the bathrooms, although in the training sessions she conducts within the school district, she has encountered other adults who do not agree with the district's transgender policies. Doc. 161 at Tr. 106, 118-19. Based on her experience in meeting with these adults, Kefford's opinion is that "people are afraid of what they don't understand ... [and] a lot of that fear [is because] they haven't experienced it, they don't know enough about it, and the first thing that comes to mind is this person wants to go into this bathroom for some other purpose. That's not the reality. The reality is this child ... just want[s] to be accepted" as a member of the gender with which they identify. Id. at Tr. 120-21.

Kefford also testified that there has never been a problem involving a transgender student in the bathroom, and any problem that did arise would be dealt with in accordance with the school's disciplinary guidelines. Id. at Tr. 106-07. Kefford said that any child who was uncomfortable with the policy or wanted additional privacy beyond that already afforded by a bathroom stall would have the option of using a gender-neutral single-stall bathroom. Id. at Tr. 120. She also testified that some transgender students who are in the early stages of their transition prefer to use a gender-neutral bathroom instead of the bathroom that matches their gender identity. Id. at Tr. 111-12. Kefford has never heard of a transgender student (or adult) going into a restroom for the purpose of engaging in any inappropriate predatory behavior and has never heard of a cisgender student pretending to be transgender to gain access to a bathroom opposite of their true gender identity. Id. at Tr. 107, 119.

Dr. Thomas Aberli, a principal with the Jefferson County Public Schools in Kentucky testified about his experience at a high school during the time that it adopted a policy to permit transgender students to use bathrooms and locker rooms that aligned with their gender identity. Doc. 160-1 at Tr. 22-23. That high school does not have any gender-neutral bathrooms but does have one single-stall girls' bathroom and one single-stall boys' bathroom in the front office. Id. at Tr. 25. Aberli testified that the school had no problems implementing the policy, which was occasioned by a student who transitioned during the school year. Id. at Tr. 26-27. Aberli explained that this was his first encounter with a transgender student and he had a steep learning curve but ultimately concluded that "being transgender was a real thing that the school would have to respond to." Id. at Tr. 31. Although many parents initially had concerns about safety and privacy, the school has disciplinary procedures to address any violations, and none have occurred. Id. at Tr. 45-54.

III. Conclusions of Law

To prevail, Adams must prove by a preponderance of the evidence that the School Board violated his rights under the Equal Protection Clause and/or Title IX. If Adams does so, it is also his burden to prove (again by a preponderance of the evidence) how this violation caused him damage. See Pattern Jury Instructions, Civil Cases, Eleventh Circuit (2013 revision, last revised Jan. 2018) 1.1 Gen. Prelim. Instr.; Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (explaining that even in burden shifting cases, plaintiff bears the ultimate burden of persuading the trier of fact).

The Supreme Court has long recognized that the state has broad authority to protect the physical, mental, and moral well-being of its youth. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 72-74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). The Court is mindful that schools are traditionally locally controlled and that a federal court should tread lightly when asked to contravene a policy established by a local school board. Minor children are involved here and the concerns of their parents and school administrators charged with their safety cannot be minimized. Moreover, of all the areas in a school, bathrooms are where privacy considerations are at their peak. So, even if a school is otherwise prepared to accept a student as transgender, it is not surprising that allowing transgender students to use restrooms aligned with their gender identity is not an easy step. But neither was it easy when public restrooms were racially integrated. To be sure, what the law requires and what some are comfortable with are not always the same. Nonetheless, "[a]n individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act." Obergefell v. Hodges, --- U.S. ----, 135 S.Ct. 2584, 2605, 192 L.Ed.2d 609 (2015).

A. Equal Protection Clause Claim

The Equal Protection Clause of the Fourteenth Amendment provides that no State may "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Accordingly, the St. Johns County School Board, a political subdivision of the State of Florida, must "treat all persons similarly situated alike or, conversely, [must] avoid all classifications that are 'arbitrary or irrational' and those that reflect 'a bare desire to harm a politically unpopular group.' " Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446-47, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ). Generally, state action will be upheld "if it is rationally related to a legitimate governmental purpose." Id. However, classifications based on "sex or gender" are subject to intermediate scrutiny. Id. at 1315-17 ; see also Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1050-52 (7th Cir. 2017) (determining school district decision to exclude transgender students from bathrooms matching their gender identity was based on sex stereotyping, and thus subject to heightened scrutiny );

M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F.Supp.3d 704, 718-19 (D. Md. 2018) (reviewing Glenn and Whitaker and determining that heightened scrutiny applied in transgender school bathroom case); A.H. v. Minersville Area Sch. Dist., 290 F.Supp.3d 321, 331 (M.D. Pa. 2017) (holding intermediate scrutiny applied in transgender school bathroom case); Evancho v. Pine-Richland Sch. Dist., 237 F.Supp.3d 267, 288 (W.D. Pa. 2017) (same); Stone v. Trump, 280 F.Supp.3d 747, 768 (D. Md. 2017) (applying intermediate scrutiny to decision to exclude transgender individuals from the military); Doe 1 v. Trump, 275 F.Supp.3d 167, 210 (D.D.C. 2017) (same).

The School Board's bathroom policy cannot be stated without referencing sex-based classifications, as it requires what it terms "biological boys"--intended by the School Board to mean those whose sex assigned at birth is male--to use the boys' bathrooms or gender-neutral bathrooms, and it requires "biological girls"--intended by the School Board to mean those whose sex assigned at birth is female--to use the girls' bathrooms or gender-neutral bathrooms. But Adams identifies as a boy, is identified by others as a boy, is legally deemed by the state of Florida to be a boy, lives as a boy, uses the men's restroom outside of the school setting, and is otherwise treated as a boy--except when it comes to his use of the school bathrooms. The School Board Attorney agreed that as a transgender boy, Adams is not treated the same as "biological boys" when it comes to using the restroom. Doc. 162 at Tr. 118. Thus, although the policy treats most boys and girls the same, it treats Adams differently because, as a transgender boy, he does not act in conformity with the sex-based stereotypes associated with the sex he was assigned at birth (female). "This policy is inherently based upon a sex-classification and heightened review applies." Whitaker, 858 F.3d at 1051 (explaining that school bathroom policy which relied on sex listed on students' birth certificates did not treat all boys and girls the same (and therefore violated the Equal Protection Clause) because transgender students, who fail to conform to sex-based stereotypes associated with their sex assigned at birth, are treated differently). As the Eleventh Circuit explained in Glenn, "[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype," which includes "perceived gender-nonconformity," "a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause." 663 F.3d at 1318-19. The School Board does not dispute that its bathroom policy makes distinctions based on sex and is subject to intermediate scrutiny; that is the standard the Court will apply.

Under the intermediate scrutiny standard, the School Board must show that " 'its gender classification is substantially related to a sufficiently important government interest.' " Glenn, 663 F.3d at 1316 (quoting Cleburne, 473 U.S. at 441, 105 S.Ct. 3249 ). The justification for its policy must be "exceedingly persuasive." United States v. Virginia, 518 U.S. 515, 532-33, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). "Moreover, the classification must substantially serve an important governmental interest today, for in interpreting the equal protection guarantee, [the Supreme Court has] recognized that new insights and societal understandings can reveal unjustified inequality that once passed unnoticed and unchallenged." Sessions v. Morales-Santana, --- U.S. ----, 137 S.Ct. 1678, 1690, 198 L.Ed.2d 150 (2017) (internal quotation and alterations omitted, emphasis in original) (citation omitted). The School Board contends its bathroom policy is substantially related to its important interests in student privacy and student safety, both of which fall within its statutory responsibility for student welfare.

1. Privacy

The School Board claims that its long-standing policy of having separate boys' and girls' bathrooms has created an expectation of privacy for students and parents who do not expect students of the opposite sex to share the bathroom space. Doc. 162 at Tr. 67. The Court agrees that the School Board has a legitimate interest in protecting student privacy, which extends to bathrooms. But allowing transgender students to use the restrooms that match their gender identity does not affect the privacy protections already in place. When he goes into a restroom, Adams enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves. Adams has encountered no problems using men's restrooms in public places, and there were no reports of problems from any boys or boys' parents during the six weeks of his freshman year when Adams used the boys' restrooms at Nease. Nor was there any evidence that any school official associated with the St. Johns County School District, including members of its LGBTQ task force, had ever heard of any incident anywhere where a transgender student using a restroom acted in a manner that invaded another student's privacy.

Likewise, the research and experience of the school officials from Broward County and Jefferson County Public Schools in Kentucky revealed no privacy concerns when transgender students used the restroom that matched their gender identity. While St. Johns County School personnel said girls may want privacy in the restrooms while talking to their peers, changing clothes (which can be done in a stall), putting on make-up, or removing stains from their clothing, none of that requires them to expose their anatomy to other students such that having a transgender student in the restroom would invade their bodily privacy. And, any student who wants additional privacy for any reason is permitted to use the gender-neutral single-stall bathrooms.

Admittedly, the boys' restrooms at Nease- which Adams would use if he could- have urinals without dividers, so if someone chose to be a voyeur, there is the potential that a boy's genitals could be viewed. But this is not a real concern for several reasons. First, Adams cannot use a urinal and always uses a stall. Second, there is no evidence that a transgender boy is more likely to be curious about another student's anatomy than any other boy. Third, any student engaging in voyeurism in the bathroom would be engaging in misconduct which is subject to discipline through the School District's code of conduct. Fourth, any boy who is concerned about other students seeing his anatomy can use a gender-neutral bathroom or a stall in the boys' restroom (as Adams would when using the boys' restroom).

Nor was there any evidence that transgender students might expose themselves to other students in the restroom; in fact, the evidence was to the contrary- transgender students want to be discrete about their anatomy so other students do not recognize them as anything but the gender with which they identify. Indeed, as the School Board admitted, there could be transgender students whose enrollment documents are consistent with the students' gender identity, and no one would know they are using restrooms that are different from the ones that match their sex assigned at birth.

Based on the evidence at trial, the Court concludes that the School District's bathroom policy "does nothing to protect the privacy rights of each individual student vis-a-vis students who share similar anatomy and it ignores the practical reality of how [Adams], as a transgender boy, uses the bathroom: by entering a stall and closing the door." Whitaker, 858 F.3d at 1052 ; see also Boyertown, 893 F.3d at 193 (rejecting cisgender students' argument that transgender students in school locker rooms and multi-stall restrooms violated their constitutional right to privacy, noting "appellants are claiming a very broad right of personal privacy in a space that is, by definition and common usage, just not that private"). Thus, when the School District's stated privacy interest is "weighed against the facts of the case and not just examined in the abstract," Whitaker, 858 F.3d at 1052, it fails to provide an "exceedingly persuasive justification" for the School Board's bathroom policy. Virginia, 518 U.S. at 556, 116 S.Ct. 2264. See also Grimm, 302 F.Supp.3d at 751 (finding School Board's privacy argument "[rang] hollow" and was based on conjecture given that the only complaints came from adults, not students (who had shared a restroom with the transgender student for weeks) and because a " 'transgender student's presence in a restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex' ") (quoting Whitaker, 858 F.3d at 1052 ); Evancho 237 F.Supp.3d at 289-90 (acknowledging school's obligation to protect student privacy but finding "facts on the ground" revealed school bathroom layout (composed of stalls with locking doors and partitioned urinals) did not pose any actual risk of invasion of a student's personal privacy).

2. Safety

The School Board also cites student safety as a basis to uphold its bathroom policy, expressing concern for transgender students who may be bullied or harassed in the bathroom matching their gender identity and for cisgender students who may not feel safe if a person with genitalia of the opposite sex is in the restroom with them. There was no evidence that Adams encountered any safety concerns during the six weeks he used the boys' restroom at Nease or when he does so in other public places. Likewise, there was no evidence that Adams presents any safety risk to other students or that transgender students are more likely than anyone else to assault or molest another student in the bathroom. Any incidents of misconduct are subject to the school's code of conduct and, if necessary, Florida criminal law.

None of the school officials who testified had ever heard of an incident where student safety was compromised by the presence of a transgender student in the restroom that matched his or her gender identity. Again, any student with safety concerns-including a transgender student-can use a gender-neutral single-stall bathroom. Consistent with a number of other courts that have considered the issue, this Court finds concern for student safety is not an "exceedingly persuasive justification" for upholding the school bathroom policy. Virginia, 518 U.S. at 556, 116 S.Ct. 2264 ; see, e.g., Evancho, 237 F.Supp.3d at 291 (finding safety concerns were unfounded given availability of disciplinary code and lack of record of any threat that a student would pose as transgender to gain access to a restroom); Highland, 208 F.Supp.3d at 876-77 (finding testimony from other districts showed parents' safety concerns to be "wholly unfounded in practice" and noting that any worry about sexual activity in the bathrooms was "logical[ly] flaw[ed]" given that gay males were not excluded from boys' restrooms and gay females were not excluded from girls' restrooms).

3. Additional Considerations

Although the Court has found that the School Board's concerns about privacy and safety are only conjectural (and therefore insufficient to survive intermediate scrutiny), the School District says it creates policy with an eye toward minimizing the risk of future problems, even if none have ever occurred. With that in mind, the Court has carefully considered whether the eleven gender-neutral single-stall bathrooms on campus (which are open to all students) provide an appropriate accommodation for Adams such that more is not required. They do not. While there are more stalls available in gender-neutral bathrooms (eleven) than in the multi-stall boys' restrooms (ten), some of them are further away from Adams' classes. More importantly, however, Adams testified to the stigma that attaches to his use of gender-neutral bathrooms, especially when he has to walk right past an available boys' restroom to find one. See Doc. 160-1 at Tr. 204 (describing the walk from his class to a gender-neutral single-stall bathroom as "feel[ing] almost like a walk of shame").

He also testified about the message it sends to other students that the school does not view him as a real boy. Using his words: "[B]ecause I'm using a special bathroom and I'm oftentimes passing a men's bathroom, everybody knows I'm different, and I just want to fit in. So it's the opposite of what I want." Id. at Tr. 205. In Boyertown, the Third Circuit rejected the suggestion from cisgender students that the school should offer transgender students the opportunity to use gender-neutral single-stall facilities, finding that policy "invite[s] more scrutiny and attention" from the transgender students' peers, "very publicly brand[ing] all transgender students with a scarlet "T" [which] they should not have to endure ... as the price of attending their public school." 893 F.3d at 192 (quoting Whitaker, 858 F.3d at 1045 ). The Court finds the placement of the numerous gender-neutral single-stall bathrooms on campus, while useful and well-intentioned, does not remedy the Equal Protection violation.

The retired Director of Student Services testified that the task force was concerned about what to do about "gender-fluid" students if the School District strayed from its long-standing policy of only permitting "biological boys" to use the boys' restroom and only permitting "biological girls" to use the girls' restroom. The general point is well-taken, but merely hypothetical given where we are. This case does not raise the issue of what to do about gender-fluid students; rather, the question here is whether to permit a transgender boy who has taken significant social, medical and legal measures to present as a boy (and who never intends to use a girls' restroom) to have access to the boys' restroom. Thus, to the extent school officials are worried that gender-fluid students might be using a boys' restroom one day and a girls' restroom the next, that would not happen if relief is granted here because this case is only about permitting one transgender boy to use the boys' restroom. For this same reason, the hypothetical worry that cisgender students might pose as gender-fluid for the purpose of gaining access to the restroom of the opposite sex is not a valid concern here. This case is not about eliminating separate sex bathrooms; it is only about whether to allow a transgender boy to use the boys' bathroom.

The Court likewise rejects the contention that permitting Adams to use the boys' restroom is just the beginning of a "slippery slope" which will result in the elimination of separate sex restrooms. As explained by the Medical Amici, a transgender individual " 'consistently, persistently, and insistently' identifies as a gender different than the sex they were assigned at birth." Doc. 119, Ex. A at 7. Transgender individuals are not gender-fluid and their sense of who they are is settled. Adams does not want to use the girls' restroom. The undisputed evidence is that he is a transgender boy and wants to use the boys' restroom. There is no evidence to suggest that his identity as a boy is any less consistent, persistent and insistent than any other boy. Permitting him to use the boys' restroom will not integrate the restrooms between the sexes.

Even so, the School Board contends that its policy is simply based on the realistic physical differences between the sexes. The School Board cites Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), in which a plurality of the Supreme Court noted that it "has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances." Id. at 469, 101 S.Ct. 1200. The statute in Michael M. (which criminally punished males for engaging in sexual intercourse with females under the age of eighteen to whom they are not married, but did not similarly punish females) was based on the physiological fact that women can get pregnant and men cannot. Id. at 469, 471, 101 S.Ct. 1200. As the plurality opinion explained, California sought to prevent illegitimate teenage pregnancies (the harmful consequences of which fall disproportionately on the teenage female and often result in costs to the state when unwanted illegitimate children become its wards) by deterring men from having sex with underage women to whom they are not married. Id. at 470-73, 101 S.Ct. 1200. The Court agreed with California that having a gender-neutral statute would frustrate its effective enforcement because women would not report the crime if they, too, would be prosecuted. Id. at 473-74, 101 S.Ct. 1200.

The bathroom policy here is distinguishable-everyone is subject to the same rule-both boys and girls must use the bathroom that aligns with their sex assigned at birth (or a gender-neutral one), and both boys and girls would be subject to discipline for disobeying the policy. The school bathroom policy does not depend on something innately different between the bodies of boys an