In a reversal from lower courts, the full bench of the US Court of Appeals for the 11th Circuit voted 7-4 on December 30 that denying a transgender boy access to the boys’ restrooms at Nease High School did not violate his rights under either the Equal Protection Clause or Title IX of the Education Amendments of 1972.
The case could have been dismissed as moot if Florida US District Court Judge Timothy Corrigan had not awarded $1,000 in damages to Drew Adams, a transgender boy, in 2018. Instead, the latest decision reversed Corrigan’s ruling as well as two 2-1 opinions by a three-judge panel of the Court of Appeals. The 11th Circuit’s ruling makes a binding precedent for the courts in Florida, Alabama and Georgia.
All of the active Republican appointees on the court (six by Donald Trump, one by George W. Bush), voted to overrule the panel and district court opinions, which had found that the St. Johns County School Board violated Adams’ constitutional and statutory rights. The active Democratic appointees (one by Bill Clinton, three by Barack Obama), dissented. The three-judge panel that had ruled in favor of Adams had also split on party lines, with Obama appointees voting for Adams and a Bush appointee dissenting. The only Republican appointee to vote in favor of Adams was District Judge Corrigan (now serving as Chief Judge of the Middle District of Florida), who was appointed by President George W. Bush.
The opinion for the Court of Appeals by Circuit Judge Barbara Lagoa parted company from rulings in favor of transgender boys presenting the same issues that were previously issued by the Fourth Circuit and the Seventh Circuit. Lambda Legal, which is representing Adams, has a difficult strategic decision to make: The split of circuit opinion increases the odds that the Supreme Court would grant review of this case, and the current ideological tilt of the Court does not necessarily bode well for a reversal.
Drew Adams first enrolled as a student in the St. Johns school system in the fourth grade, at that time having a birth certificate identifying him as female, although the testimony in this case (which went through a three-day trial in December 2017) showed that Adams had identified as a boy from a very young age. When he began attending Nease High School, he continued his practice of using the boys’ restrooms without incident until some girls complained to the administration. No boys ever complained about Adams using the boys’ restrooms.
The school board had set up a task force to research issues presented by transgender students, and it had adopted a policy that students would be called by their desired names and pronouns and treated consistent with their gender identity except for the use of single-sex facilities. As to those, the district insisted that students must be treated as the sex identified on their enrollment papers in the school district. Thus, Adams would be treated as a girl for these purposes, and the district restricted the use of restrooms — the point of contention in this case — on the basis of what they called “biological sex,” which was the sex reflected on the birth certificate.
Ironically, by the time this issue became a point of legal contention, Adams had already transitioned as much as was possible before age 18, including undergoing gender-affirming hormone treatment, dressing and grooming as a boy, obtaining a legal name change, and obtaining a new birth certificate identifying him as male. But the school district insisted that a student’s sex for purposes of restroom access was fixed at the time of their enrollment, regardless of such subsequent developments.
During the trial, it was established that if a student identified as female at birth transferred to the St. Johns County schools after having transitioned consistent with a male gender identity and had obtained a new birth certificate showing them as male, they would be treated based on their enrollment papers as male. Thus, a transgender boy’s ability to access a restroom was not really based on “biological sex” (whatever that might mean) but actually was based on the sex identified on legal documents at the time they enrolled in the school district. And the district court received expert testimony, not rebutted by the school district, that the phrase “biological sex” as used by scientists encompasses more than observable genitalia. There was expert testimony that Adams should be considered a biological male.
In 2018, District Judge Corrigan concluded that the district’s policy, as applied to Adams, violated his equal protection and Title IX rights. By then, case law in the 11th Circuit had long since recognized — in a public employee discharge case — that discrimination based on gender identity was a form of sex discrimination for equal protection purposes, subject to “heightened scrutiny.” Judge Corrigan concluded that the school district failed to prove that barring Adams from using the boys’ bathrooms would significantly advance an important governmental interest, at least in part because had Adams transferred into the district after transitioning, he would have been allowed to use the boys’ restroom, fatally undermining the school district’s contention that their “important governmental interest” was protecting the privacy rights of cisgender boys.
Judge Corrigan also found a violation of Title IX, rejecting the district’s argument that regulations authorizing schools to maintain separate restroom facilities for boys and girls made their policy lawful. He issued an injunction ordering that Adams, who was still a student at that time, be allowed to use the boys’ restrooms at the high school, and the judge awarded him $1,000 in damages. The district promptly appealed to the 11th Circuit.
A three-judge panel voted 2-1 in an August 2020 decision to affirm Judge Corrigan’s ruling on both constitutional and statutory grounds. The dissenting judge was Chief Judge William H. Pryor, Jr., who blocked the court’s mandate from being issued and effectively coerced the majority of the panel to reconsider the basis for its ruling. In a July 2021 decision, again 2-1, the same panel affirmed Judge Corrigan’s ruling only on constitutional grounds, with the majority hoping that limiting its opinion to that extent would meet Judge Pryor’s objection that there was no existing 11th Circuit precedent holding that Title IX extended to discrimination because of gender identity. But Pryor blocked the mandate again, and a majority of the active judges on the circuit court voted to vacate the panel decisions and reconsider the case by the full panel, which then consisted of 12 judges. Since then, however, one of Obama’s appointees, Circuit Judge Beverly B. Martin, who wrote the two panel decisions, has retired, and President Biden’s nominee has not yet been confirmed, so an 11-judge bench convened to reconsider the case.
Adams was a “rising junior” at the time he filed this lawsuit in June 2017, so he is no longer a student at Nease High School and the issue of the injunction is moot. At the time of the district court decision, Judge Corrigan limited the injunction just to Adams, as the case was not brought as a class action on behalf of all transgender transgender student and, he pointed out, all of the factual evidence in the case related to Adams, not to any other transgender students. However, since the judge awarded Adams damages, the school district’s appeal is not moot.
Judge Lagoa’s opinion for the majority treats the issue before the court as whether it violates the Constitution or Title IX for a school to have a policy that student restroom access is based on “biological sex.” The dissenting opinions point out that this is not really the question before the court, since the school district’s policy is based on sex as identified on enrollment papers, and, besides, Adams is not challenging the right of the district to maintain single-sex bathrooms. Rather, he is arguing that as a transgender boy, recognized legally as male by the state of Florida through the issuance of a new birth certificate which required the submission of medical evidence of transition, he is entitled to use the boys’ bathroom the same as any other boy.
The underlying basis of Lagoa’s opinion, of course, is that it is an article of faith among Republican conservatives — the party line, as it were — that “biological sex” as identified at birth is immutable, and that no matter what transitional or gender-affirming treatment a person receives, they remain “biologically” the sex by which they were identified at birth, normally through visual inspection of their genitalia by the delivering physician. This is reflected in the fact that throughout her lengthy opinion, Judge Lagoa never refers to Adams as he/his/him, but rather just by using his surname. (Judge Jill Pryor, a member of the original three-judge panel and author of the lengthiest dissent, refers to Adams by pronouns consistent with his gender identity.)
As to the equal protection analysis, Lagoa asserts that equal protection applies to intentional discrimination between similarly situated people. As far as the majority is concerned, Adam remains a “biological girl” and thus is not similarly situated with the cisgender boys who are allowed to use the boys’ restroom. Therefore, the majority of the court holds that there is no equal protection violation. Although they accept based on 11th Circuit precedent that if there was discrimination, it would be subject to “heightened scrutiny,” they find that it would survive that test based on the school district’s concern for the privacy interests of the cisgender boys who don’t want a girl present in their bathroom. They reach this conclusion by ignoring all the nuances of Judge Corrigan’s factual determinations on the privacy issue, and also contrary rulings by other courts that have rejected such privacy arguments in the context of transgender school restroom cases.
Turning to Title IX, the court rejects the three-judge panel’s application of the Supreme Court’s 2020 Bostock v. Clayton County decision to Title IX. In Bostock, the Supreme Court held, among other things, that an employer who fires an employee because of their transgender status has discriminated “because of sex,” subjecting the employer’s action to attack under Title VII of the Civil Rights Act of 1964. This was because, the Court ruled, that it is impossible to discriminate because of transgender status without discriminating because of sex. The Trump administration’s immediate reaction to this ruling was that it applied only to Title VII, not to any other federal sex discrimination law, including Title IX, and this position has also become part of the “party line” among many of Trump’s judicial appointees.
It is true that in the Bostock decision, Justice Neil Gorsuch asserted that the Supreme Court was deciding only the issue before it — whether a person discharged because they are transgender can bring a discrimination claim under Title VII — and was not deciding anything about bathrooms or other statutes. But the logic of that decision has struck many lower federal courts — as well as state courts interpreting their own civil rights laws — as relevant to deciding that laws outlawing sex discrimination should now be interpreted to ban gender identity discrimination. Judge Jill Pryor notes and cites the relevant cases in her dissent.
In addition to writing the opinion for the majority, Judge Lagoa wrote a separate, concurring opinion, to focus on an issue not before the court: her contention that ruling in favor of Adams under Title IX would destroy girls’ scholastic sports competition. This separate opinion is totally unwarranted and inappropriate, first because she already devoted some irrelevant discussion to this issue in her opinion for the court, and secondly because she asserts facts that are not based on any trial record in this case, as the issue of transgender girls participating in girls’ sports has nothing to do with the issue of transgender boys using boys’ restrooms, implicating a completely different universe of relevant facts.
The dissenting opinions filed by Circuit Judges Charles R. Wilson, Robin Rosenbaum, and Jill Pryor, take on the majority opinion in detail, pointing out the numerous flaws in reasoning and failure to apply precedent honestly.
