ATLANTA (CN) — The en banc 11th Circuit heard arguments Tuesday over whether a Florida school board's policy prohibiting a transgender student from using the bathroom matching his gender identity is unconstitutional, after a three-judge panel held that it is.
The school board for St. Johns County, Florida, has a policy that says biological boys may not use the girls’ bathrooms and biological girls may not use the boys’ bathrooms. However, the student's "biological sex" is based on what they identify as on their enrollment paperwork.
Drew Adams, a transgender boy at Nease High School in Ponte Vedra, filed a lawsuit against the school board in 2017, arguing that he was discriminated against and felt “alienated and humiliated" when he was told he would be subject to disciplinary action if he continued to use the boys' bathroom.
While Adams initially enrolled as female, he had since then been diagnosed with gender dysphoria by his
therapist and endocrinologists and has undergone medical transitions. including monitored hormone therapy and a mastectomy. Adams also underwent legal transition by correcting his driver’s license and birth certificate to reflect his male gender.
Other students and school officials recognized Adams as a boy in all respects and he had no incidents using the boys' bathroom. However, when two anonymous female students reportedly complained, Adams was ordered to use either the girls' or the gender neutral bathroom.
U.S. District Judge Timothy Corrigan in Jacksonville ruled that the bathroom policy violates Adams' civil rights and issued an injunction preventing the school board from enforcing it against him.
After Corrigan's decision was upheld by a three-judge panel of the 11th Circuit in 2020, the school board successfully petitioned for an en banc rehearing the following year as the case attracted interest from the U.S. Department of Justice.
Tuesday morning's oral arguments focused on whether the school district's policy of assigning bathrooms based on sex violates the equal protection clause of the Constitution or Title IX of the Education Amendments Act of 1972.
U.S. Circuit Judge William Pryor, a George W. Bush appointee, dissented from the majority's holding in the original panel decision, arguing that Congress could not have intended the term “sex” to include gender identity when the law was enacted in 1972 because the medical community at that time “was firmly opposed to sex reassignment surgery.”
Title IX prohibits sex discrimination in educational programs and activities, but it also permits schools to maintain
separate facilities for the sexes, which includes restrooms.
Pryor focused on privacy concerns and asked the school district's attorney, Jeffrey Slanker, if there was any danger of someone being exposed to the body of someone of the opposite sex.
After Bill Clinton-appointed U.S. Circuit Judge Charles Wilson interjected and said there's no evidence of that, or that "a boy's privacy was violated by Drew's presence in the bathroom," Slanker argued back that the school shouldn't have to wait until an incident occurs before taking preventative actions. The school board's brief to the court also states that "there is no evidence the policy was motivated by a discriminatory purpose towards Adams."
Adams' attorney, Tara Borelli, pointed out to the judges that her client had used the stalls in the boys' bathroom, which are there to ensure student privacy.
Borelli argued in her brief that the district court "found that Andrew’s identity as a boy is no less consistent, persistent, or insistent than any other boy. By the time of the ruling, Andrew had socially, medically, and legally transitioned, living consistently with his male identity in all aspects of life."
U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee, questioned the school district's use of the term "biological sex" and called it "not very precise," as the district court found Adams to be a male based on medical evidence suggesting each person has a number of sex-related characteristics that may or may not be congruent, making external genitalia an inaccurate "proxy" to determine one's sex.
With the possibility that student's sex marker on their enrollment paperwork may not match their biological sex, Borelli said that a transgender student who enrolled before their gender dysphoria diagnosis, such as Adams, can never correct their gender with the school.
U.S. Circuit Judge Adalberto Jordan agreed. "That can't possibly satisfy the equal protection clause," the Obama appointee said.
"Everyone recognizes him as male and the school board would still send him to the woman's bathroom?" Borelli asked. "The classification undermines its own interests."
Borelli noted that no one ever claimed that Adams had engaged in any misconduct while in the boys' restroom and that the school board confirmed that neither of the two female students expressed privacy or safety concerns in their report, although it was never described at trial.
An attorney for the Justice Department's Civil Rights Division also addressed the court in support of Adams' claims that isolating a transgender student from their peers in restrooms constitutes discrimination.
"The gender neutral bathroom singles Adams out," said Elizabeth Hecker.
Some of the judges expressed concerns about other plausible scenarios that could arise, including U.S. Circuit Judge Kevin Newsom, who asked about a hypothetical situation where a boy wanted to join a girls' gym class.
Newsom's concerns were echoed by Donald Trump-appointed U.S. Circuit Judge Barbara Lagoa, who asked, "What do you do if a student is gender fluid?"
The judges did not signal when they intend to issue a ruling.
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