A majority of a federal appeals court made up almost entirely of Donald Trump appointees ruled against a transgender activist in a case over bathroom usage in schools. In dissent, stood four Barack Obama appointees.
The U.S. Court of Appeals for the 11th Circuit in Florida ruled 7-4 Friday that the St. Johns County School Board did not illegally discriminate against transgender student Andrew Adams when it refused to allow him to use the boys’ bathroom at his high school.
Adams, who is now a 20-year-old man and transgender activist, attended Allen D. Nease High School in St. Augustine, Florida. The school maintains an unwritten policy that students must use either the bathroom that corresponds with their gender as listed on enrollment documents or else a single-occupancy gender-neutral bathroom.
Adams used the school’s male bathrooms at the start of ninth grade “without incident.” However, after two students complained to officials, the school then prohibited Adams from using the boys’ bathroom, because once enrolled, the district does not accept updates to students’ genders.
After the school refused to change its policy per Adams’s request, Adams sued in federal district court for violation of his civil rights under 42 U.S.C. § 1983 and violation of the Equal Protection Clause of the U.S. Constitution. After a three-day bench trial, the district court ruled for Adams on both counts, awarded him $1,000 in damages, and ordered the school board to allow Adams to use male bathrooms.
The seven judges of the 11th Circuit, however, reversed in a ruling that fell strictly along partisan lines.
Trump-appointed judge Barbara Lagoa said the case was about the “unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex.” The rest of the court’s 7-member majority was comprised of five more Trump appointees (U.S. Circuit Judges Britt Grant, Kevin Newsom, Elizabeth Branch, Robert Luck, and Andrew Brasher), and one George W. Bush appointee — U.S. Circuit Judge William Pryor.
The majority ruled that the school’s policy violated neither the Equal Protection Clause of the Constitution nor Title IX of the Civil Rights Act, and noted that of the district’s 40,000+, only sixteen identify as transgender.
In the court’s equal protection analysis, Lagos pointed to former Supreme Court Justice Thurgood Marshall‘s words to support the majority’s central premise that because single-sex bathrooms are commonplace, they are not illegally discriminatory.
Lagos wrote that “Indeed, the universality of [separating bathrooms by gender] is precisely what made Justice Thurgood Marshall’s statement—'[a] sign that says “men only” looks very different on a bathroom door than a courthouse door’—so pithy.”
Lagos applied intermediate scrutiny applies to the school’s gender-based classification, and found that the school’s policy was appropriately tailored to its needs. She wrote that districts should be afforded deference, because “schools’ responsibilities are so great that they can be held liable for their failures to protect students from sexual assault and harassment,” and said that Adams’s district has already “gone to great lengths” to accommodate LGBTQ students.
Chief among schools’ interests, said Lagos, is the responsibility to protect students’ privacy interests by “shielding their bodies from the opposite sex.”
The court’s majority said that what is relevant to Adams’s case is not his status as a transgender boy. Rather, the opinion said, what matters is whether all students must adhere to the same policy. Quoting pleadings, the majority said:
Adams’s challenge to the bathroom policy revolves around whether Adams, who was ‘determined solely by accident of birth’ to be a biological female—is allowed access to bathrooms reserved for those who were ‘determined solely by the accident of birth’ to be biologically male.
The appeals court ruled that the school’s policy does not discriminate against transgender students, because no student — whether transgender or cisgender — is permitted to use a bathroom that does not correspond with their gender listed on enrollment documents. At most, Lagos conceded, the issue is one of “disparate impact” on transgender students. However, the judge said, disparate impact alone is not enough to render an otherwise neutral policy illegal.
The 11th Circuit similarly dispensed with Adams’s Title IX claim, finding that Title IX clearly allows for “carve-outs” such as those for same-sex housing and bathroom facilities, and that “sex” unambiguously means “biological sex.”
In a special concurrence to her own opinion, Lagos wrote that a ruling in Adams’s favor would have a “deleterious” on girls’ sports. Allowing a transgender boy to use the girls’ bathroom, said Lagos, would compromise the entire purpose of Title IX:
[A] transgender athlete, who is born a biological male, could demand the ability to try out for and compete on a sports team comprised of biological females. Such a commingling of the biological sexes in the female athletics arena would significantly undermine the benefits afforded to female student athletes under Title IX’s allowance for sex-separated sports teams.
The four dissenting judges were all Barack Obama appointees: U.S. Circuit Judges Charles Wilson, Adalberto Jordan, Robin Rosenbaum, and Jill Pryor.
Wilson penned a 7-page dissent in which he called the school’s bathroom policy “nonsensical” and argued that “biological sex” is not a “static” concept. Wilson began by discussing chromosomal irregularities that lead to individuals born with intersex variations.
“How then, does the bathroom policy account for intersex people?” Wilson queried.
Wilson asserted that because the district’s policy would prohibit an intersex student from updating their gender identity, it is “plainly discriminatory.” He continued, noting that the majority purposely sidestepped a constitutional violation “By leading the court down this path of ‘biological sex,’ misconstruing Adams’s argument the whole way.”
Wilson was overtly skeptical about the school’s proffered justification for its policy: “If the School Board were truly concerned about male genitalia in the female bathroom, or vice versa, the policy would account for intersex students and would accept updated documentation.”
Jordan also authored a dissent — one which focused on another inconsistency in the school’s policy; Adams was disallowed from updating his gender in school documentation, but another transgender student “just like Drew” could use the boys’ bathroom if he enrolled in school after transition using documents listing his gender as male.
“Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience,” wrote Jordan.
Jordan also chided the majority for “once again relegating a district court’s findings of fact to the dustbin” by ignoring how the policy is actually used.
“All it would take is for the School Board to accept the new (or revised) enrollment documents (such as a new form, a new birth certificate, and a new driver’s license) identifying Drew as male,” the judge wrote.
Rosenbaum used her brief concurrence to underscore the point that if the majority’s decision were correct, it would require all courts in the 11th Circuit to reverse decisions involving involving restrooms, locker rooms, and changing facilities.
It was Pryor, though, that penned a protracted 65-page dissent that slammed the majority at every angle.
Each time teenager Andrew Adams needed to use the bathroom at his school, Allen D. Nease High School, he was forced to endure a stigmatizing and humiliating walk of shame—past the boys’ bathrooms and into a single-stall “gender neutral” bathroom. The experience left him feeling unworthy, like “something that needs to be put away.” The reason he was prevented from using the boys’ bathroom like other boys? He is a transgender boy.
Pyror said the majority’s definition of “biological sex” was “counterfactual” that addressed the wrong issue at stake in Adams’s claim. While the court focused on whether transgender students are singled out for their mandated use of single-sex bathrooms, Pryor said the relevant issue is whether Adams —a boy— is permitted to use the boys‘ bathroom.
Pryor’s frustration was apparent: “It is not, and has never been (again, no matter how many times the majority opinion says it), about whether the School District can maintain separate bathrooms for boys and girls.”
On the equal protection claim, Pryor said that the policy was discriminatory against transgender students on its face, and that the gender-based classification could not possibly survive heightened scrutiny. Pryor also found that the district’s “arbitrary and haphazard” way of enforcing its own policy demonstrates the district’s lack of legitimate interest in the policy’s stated goals.
Furthermore, Pryor wrote, under the law, “sex” includes “gender identity,” thus giving Adams protection under Title IX.
Counsel for the parties did not immediately respond to request for comment.
[screengrab via YouTube]
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