ATLANTA (CN) — An en banc 11th Circuit ruled Friday that a Florida high school's mandate to for students to use restrooms based on their biological sex is constitutional, after a transgender boy sued for being forced to use the girl's room.
Drew Adams enrolled in the St. Johns County School District in fourth grade as a biological female, but began to identify as a boy toward the end of eighth grade. Since then, Adams has 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. However, because Adams was still legally a minor at the time, he could not undergo additional surgeries to rework external genitalia.
The school board, 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.
Other students and school officials at Nease High School recognized Adams as a boy in all respects and he had no incidents using the stalls in the boys' bathroom. However, when two anonymous female students reportedly complained, Adams was ordered to use either the girls' or the gender neutral bathroom.
While it was never described at trial, the school board confirmed that neither of the two female students expressed privacy or safety concerns in their report.
In 2017, Adams sued the school board, arguing 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.
Friday's ruling by the 11th Circuit upends a ruling in Adams' favor by U.S. District Judge Timothy Corrigan. After a three-day bench trial, the Jacksonville judge ruled the bathroom policy violates Adams' civil rights and issued an injunction preventing the school board from enforcing it.
On appeal, Adams' attorney Tara Borelli argued in a brief that Corrigan "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."
Borelli said a transgender student who enrolled before their gender dysphoria diagnosis, such as Adams, can never correct their gender with the school.
A three-judge 11th Circuit panel upheld Corrigan's ruling in 2020, leading the school board to ask for an en banc rehearing the following year as the case attracted interest from the U.S. Department of Justice.
During oral arguments held this past February, the en banc panel 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.
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.
The school board argued its bathroom policy exists to address concerns about the privacy, safety, and welfare of students and that they provide sex-neutral bathrooms to accommodate gender fluidity and transgender students.
U.S. Circuit Judge Barbara Lagoa wrote in Friday's en banc ruling that the school board "has gone to great lengths" in their accommodations for LGBTQ students and that privacy interests are heightened "when children use communal restrooms" and justifies the need for separate facilities that have been recognized throughout history.
The Donald Trump appointee noted Corrigan's decision failed to address that students’ use of the sex-separated bathrooms at the high school "is not confined to individual stalls" because students can change in the bathrooms and, in the male bathrooms, use undivided urinals.
According to the ruling, upholding Corrigan's opinion would "refute the Supreme Court’s longstanding recognition that 'sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth."
Chief U.S. Circuit Judge William Pryor, a George W. Busch appointee, and U.S. Circuit Judges Elizabeth Branch, Britt Grant, Robert Luck, Andrew Brasher and Kevin Newsom — all Trump appointees — joined Lagoa's opinion.
Lagoa doubled down in a separate concurring opinion, writing there could be "repercussions far beyond the bathroom door" if courts equate the biological meaning of "sex" under Title IX to “gender identity” or “transgender status."
She said there would also be ample effects on "women's rights and sports" such as forcing female student athletes “to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female.”
U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee, disagreed with this theoretical concern, writing that the record in each particular case drives the equal-protection analysis.
Obama appointees U.S. Circuit Judges Jill Pryor and Adalberto Jordan, along with the Bill Clinton appointee Charles Wilson, also dissented, disagreeing with the school's refusal to accept a student's updated medical documentation. They wrote that under the school's policy, a transgender student such as Drew would be allowed to use the boys' bathroom if he enrolled in the district after transitioning with documents listing him as male.
"Because it is already treating Drew as male for all other purposes, the school board can only rely on administrative convenience to refuse that course of action for its bathroom policy," Jordan wrote.
Wilson wrote that he finds the school board's bathroom policy to be discriminatory because it presumes that "a student's sex does not change." He noted that according to medical experts, "there are thousands of infants born every year whose biological sex is not easily or readily categorizable at birth" due to a range of natural physiological variations.
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