Abstract
INTRODUCTION: The transgender community continues to face discrimination in United States society, and legal protections are unlikely to change anytime soon. Understanding the broader context of these challenges helps explain why some instances of discrimination in public schools may be overlooked or even supported by public officials. An examination of recent judicial rulings concerning transgender students’ access to restrooms corresponding with their gender identity—situated within the broader convergence of national legal and social developments—provides critical insight into the structural barriers faced by transgender students within the educational system and transgender individuals in society at large. Significantly, the growing visibility of transgender rights in the United States has coincided with a backlash that institutionalizes exclusionary practices in schools, particularly regarding transgender students’ access to gender-aligned facilities. One case, which has received little attention, serves as a legal flashpoint in the ongoing debate over transgender student rights. In 2022, in Adams ex rel. Kasper v. School Board of St. Johns County, the full panel of the U.S. Court of Appeals for the Eleventh Circuit ruled in favor of the School Board of St. Johns County, upholding a bathroom policy that restricts transgender students’ bathroom use to either the bathroom based on biological sex or a gender-neutral bathroom, not the bathroom that reflects their gender identity—regardless of medical transition status. In upholding a restrictive bathroom policy based on biological sex, the Eleventh Circuit advanced a legal rationale that mirrors a broader conservative judicial shift—one that systematically denies protections to minoritized populations. Then, in early 2024, the Federal District Court for the Western District of Oklahoma reached a similar result when reviewing a new state bathroom law in Bridge ex rel. Bridge v. Oklahoma State Department of Education. The Adams and Bridge decisions represent one side of the federal circuit court split on the rights of transgender students. In contrast, the Fourth Circuit decision in Grimm v. Gloucester County School Board and the Seventh Circuit decision in A.C. ex rel. M.C. v. Metropolitan School District of Martinsville upheld the rights of transgender students to use the bathrooms that correspond with their gender identity. Nonetheless, the Adams case serves as a legal guide for a growing effort that institutionalizes exclusionary practices against transgender students in schools. At the heart of this judicial approach lies a redefinition of equality that entrenches institutional exclusion by framing gender identity as subordinate to biological determinism. In the few years that have passed since the Adams decision, subsequent events have escalated the push toward transgender exclusion. For instance, on January 9, 2025, a federal court in Kentucky ruled that the U.S. Department of Education exceeded its statutory authority when promulgating the 2024 Title IX regulations, which included protections based on gender identity. The decision vacated the 2024 regulations nationwide, so the 2020 Title IX regulations now serve as the operative regulations. Significantly, the reversion to the 2020 regulations means removing protections for transgender students, such as the right to access facilities, including bathrooms consistent with one’s gender identity. While it is possible that a higher court could overturn this decision on appeal, the likelihood of that outcome is slim, and the new presidential administration—which crafted the 2020 regulations—will likely reaffirm its 2020 policies. Further, the U.S. Supreme Court recently granted certiorari to a case in which the U.S. Court of Appeals for the Fourth Circuit ruled in favor of the school district, holding in place the school’s policy eliminating the opt-out provision or parental notification when including LGBTQ-themed books in the curriculum. In Mahmoud v. McKnight, parents as plaintiffs contested, a school district’s policy that included LGBTQ-themed books in its curriculum without providing an opt-out mechanism or prior notice to parents. The parents who sued argued that the school’s policy infringed on their First Amendment free exercise rights because the inclusion of LGBTQ-themed books exposed their children to ideas contrary to their religious beliefs. The parents argued that the absence of an opt-out mechanism bypassed their parental rights. While Mahmoud might lead to the perceived conclusion that educational institutions are charged with preserving public schools as inclusive environments for a diverse populace, critics argue for neutrality in the promotion of ideas or values. In critics’ minds, Mahmoud only reaffirms the importance of parental rights and religious freedom. Much like the Adams case, the Mahmoud case highlights how these issues remain central to the ongoing legal discourse surrounding public education. While the Adams case has concluded, the legal reasoning and analytic distinctions that the Court draws between sex and gender identity offer worthwhile assumptions and arguments to interrogate and consider when other courts address transgender students’ rights in schools. In particular, the concept of institutionalized exclusion, which is best illustrated through Adams, continues to serve as a policy typology characterizing LGBTQ-related cases. When courts uphold restrictive policies, they may reinforce exclusionary norms that minoritize and cast out vulnerable groups, such as transgender students. By contrasting Adams with other circuit decisions like Grimm and Whitaker, this Article illustrates the ideological and policy-driven frameworks behind these rulings. We argue that the Eleventh Circuit’s decision to uphold restrictive bathroom policies in Adams creates minoritized and outcasted effects on vulnerable groups. In this instance, the policy’s harm to transgender students illustrates a broader trend of judicial conservatism that threatens the rights of vulnerable populations. By analyzing the arguments in Adams and juxtaposing them with the rulings in Grimm and A.C., this Article highlights the divergence in legal reasoning across circuits. The Article sheds light on the policy rationales and institutional logic of the conservative judicial movement by providing much-needed context for these decisions. Viewed another way, the Adams case marked a pivotal appellate en banc review that set a detrimental legal precedent for transgender rights in schools; it signaled a downward trend. By examining evidence and case law, it becomes evident that while related decisions diverge from the Adams rationale, an emerging legal rationalization in the United States is taking shape in the courts against transgender youth. Against this backdrop, the 2024 Title IX regulations offer an alternative vision. They explicitly recognize gender identity as a protected category under federal anti-discrimination laws. However, these regulatory advances have been crushed. A series of legal challenges, which most recently led the federal court in Kentucky to wipe out the law by invalidating the 2024 regulations, reflect deep societal divisions on transgender inclusion. While the 2024 Title IX regulations offered a glimpse into a more inclusive policy framework, the January 2025 district court decision and the ongoing debates underscore the legal and policy battles—deeply embedded in our educational system—that have sensitivities to the ruling hegemonic authority of either perpetuating or alleviating societal inequities. Further, the new presidential administration is likely to undo previous advances and align its efforts with the legal conservatism movement by attacking students on the basis of their gender identity and advancing the institutionalized exclusionary practices in schools. These cases, with Adams at the center, are not just about bathrooms. This Article argues that decisions like Adams do not merely reflect legal reasoning, but instead, they reflect the political and hegemonic authority’s viewpoint as the policy directive. This case and the policy challenges around Title IX regulations—which include transgender protections—encapsulate the structural, legal, and policy mechanisms that deny equal access, recognition, and protections to minoritized groups. More specifically, the Adams case and the Title IX regulatory challenge are efforts of institutionalized exclusion, which create a systematic minoritized effect on transgender youth. Institutionalized exclusion has far-reaching effects. Despite Title IX’s intended protections, the Adams case demonstrates how institutional power, which our society has wielded through judicial conservatism, undermines education’s role in fostering equity. By exploring the intersection of judicial trends, federal policy, and social attitudes, this Article critically assesses the role of courts in perpetuating or dismantling systemic discrimination. With this movement of institutionalized exclusion, a void in the legal literature examining school-based transgender access is twofold. The literature in this domain sparsely interrogates the foundational cases shaping the legal reasoning of the political and hegemonic authority, failing to fully appreciate the argument framing and the legal doctrines upon which they draw. Accordingly, this Article examines the rights of transgender students to use school bathrooms by evaluating the legal arguments in Adams, a monumental case within the context of the circuit split on this issue. The 2024 Title IX regulations, largely aspirational today, offer an alternative approach that could serve as a countervailing policy to the ideological movements that act as institutionalized exclusion against transgender students. With our focus on the Adams case, we ultimately conclude that Adams should have been decided differently and would be decided differently under the 2024 regulations. Instead, the institutionalized exclusionary efforts have prevailed, creating a systematic minoritized effect on transgender youth.