A federal appeals court delivered a major victory in transgender rights Friday by ruling a Florida high school violated the law by refusing to allow transgender student Andrew Cody Adams to use the restroom consistent with his gender identity.
In a 2-1 decision written by U.S. Circuit Judge Beverly Martin, a three-judge panel on the U.S. Eleventh Circuit Court of Appeals relies heavily on the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination in employment is a form of unlawful sex discrimination.
“Bostock confirmed that workplace discrimination against transgender people is contrary to law,” Martin writes. “Neither should this discrimination be tolerated in schools. The School Board’s bathroom policy, as applied to Mr. Adams, singled him out for different treatment because of his transgender status. It caused him psychological and dignitary harm.”
Joining Martin, an Obama appointee, in the majority opinion was U.S. Circuit Judge Jill Pryor, another Obama appointee. Dissenting in the case was U.S. Circuit Judge William Pryor, a George W. Bush appointee who has been on President Trump’s short-list as a potential appointment to the Supreme Court.
Adams, now 19 and a former student at Allen D. Nease High School in Ponte Vedra, Florida, said in a statement he’s “very happy to see justice prevail, after spending almost my entire high school career fighting for equal treatment.”
“High school is hard enough without having your school separate you from your peers and mark you as inferior,” Adams said. “I hope this decision helps save other transgender students from having to go through that painful and humiliating experience.”
Examining the St. John’s County School District’s policy with heightened scrutiny, or a greater assumption it’s unconstitutional, because it discriminates on the basis of sex, Martin writes the school has “demonstrated no substantial relationship between excluding Mr. Adams from the communal boys’ restrooms and protecting student privacy.”
“We see three constitutional infirmities with the School District’s bathroom policy. First, the policy is administered arbitrarily,” Martin writes. “The policy relies upon a student’s enrollment documents to determine sex assigned at birth. This targets some transgender students for bathroom restrictions but not others. Second, the School Board’s privacy concerns about Mr. Adams’s use of the boys’ bathroom are merely ‘hypothesized,’ with no support in the factual record. Third, the School District’s bathroom policy subjects Mr. Adams to unfavorable treatment simply because he defies gender stereotypes as a transgender person.”
Excluding Adams for the restroom of his choice, the panel concludes, violates the both Fourteenth Amendment of the U.S. Constitution and Title IX of the Education Amendments of 1972, which bars discrimination on the basis of sex in schools.
The ruling upholds a 2018 decision from U.S. Timothy Corrigan in Florida in favor of the Adams and against the St. John’s County School District.
Tara Borelli, counsel at the LGBTQ legal group Lambda Legal, which represents Adams, said in a statement the court “sent a clear message that schools must treat transgender students with the same dignity and respect as any other student.”
“The trial court was correct when it ruled that the law requires that Drew Adams be treated like every other boy and be allowed to use the boys’ restroom,” Borelli said. “We are glad the court saw the school board’s policy as unjust and discriminatory, and affirmed the inherent dignity of transgender students.”
In his dissent, Pryor — who deliberately refuses to acknowledge Adams is transgender by referring to him as “a female who identifies as a male” — writes the appeal “is not complicated.”
Pryor writes the school policy holds up under heightened scrutiny because the Supreme Court “has long required that we defer to the judgment of public-school officials in this context.”
“Although the school policy classifies on the basis of sex, it serves the important objectives of protecting the interests of children in using the bathroom away from the opposite sex and in shielding their bodies from exposure to the opposite sex,” Pryor says.
Pryor draws a distinction between the Bostock decision and the bathroom, pointing out the Supreme Court “declined to consider the permissibility of sex-separated bathrooms.”
“After all, context matters,” Pryor writes. “As the late Justice Thurgood Marshall once put it, “A sign that says ‘men only’ looks very different on a bathroom door than a courthouse door.”
Even though Pryor is a conservative jurist, he did join a 2011 ruling by the 11th Circuit in the case of Glenn v. Brumby, which found anti-transgender discrimination in the workplace was unlawful under Title VII of the Civil Rights of Act of 1964.
Although the majority frequently cites the Glenn decision, Pryor barely mentions it and asserts it didn’t change the definition of “sex” under the law. (The majority chides Pryor in a footnote for basically ignoring the ruling he himself joined.)
Now that the 11th Circuit panel has rendered its decision, the school district can seek further review, either in the form of “en banc” reconsideration or a petition for review before the Supreme Court.
St. John’s County Schools couldn’t be reached over the weekend to comment on the next steps. The Tallahassee, Florida-based law firm Sniffen & Spellman, P.A., which is representing the school district, didn’t immediately respond Saturday to the Blade’s request to comment.
The victory in the 11th Circuit wasn’t the only victory on Friday for transgender rights. Another win for transgender people was in Idaho over a new law barring transgender people from changing the gender marker on their birth certificates.
In Idaho, U.S. Magistrate Judge Candy Dale granted an order clarifying the new law, HB 509, violates an earlier 2018 court order requiring the state to make the change.
After Lambda Legal initially sought the clarification, the Idaho Department of Health and Welfare made changes to comply with both the law and the court injunction, but Dale concludes those adjustments are insufficient.
“This concession belays IDHW’s very argument that it has acted in compliance with the Injunction when, in fact, it has not,” Dale writes. “The Court will, therefore, grant the motion to clarify.”
Dale, however, says her decision doesn’t address the constitutionality of the Idaho law, which Idaho Gov. Brad Little quietly signed at the height of the coronavirus epidemic.
“The fact that the statute is directly at odds with the clear intent and mandate of the Injunction places IDHW in a difficult predicament over how to comply with both the Injunction and Idaho [law],” Dale writes. “However, neither the constitutionality of the statute or actions of any person or agency other than the IDHW are adjudicated here. The narrow question before the Court that is decided today is whether IDHW’s revised application form and instructions violate the Injunction.”
Nora Huppert, a Renberg Fellow and attorney with Lambda Legal, said in a statement the Idaho law is a “dangerous and archaic ban in direct defiance of multiple court orders that repeatedly ordered the government to stop discriminating against transgender people and placing them in harm’s way.”
“The court could not have been clearer: What was discriminatory in 2018 remains discriminatory today,” Huppert said. “Idaho officials may not block transgender people from obtaining identity documents that reflect who they are. This law seeks to deny the very existence of transgender people by stripping them of their identity.”
Scott Graf, a spokesperson for Idaho Attorney General Lawrence Wasden, declined to comment on the court decision.
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.