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Appeals court weighs in on Florida transgender bathroom case, orders full court hearing

The school district decided that the student had to use the bathroom of the gender that was identified on district enrollment documents.
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The school district decided that the student had to use the bathroom of the gender that was identified on district enrollment documents.

TALLAHASSEE – In a closely watched case that could have national repercussions, a federal appeals court on Tuesday peppered attorneys with questions in a lawsuit over whether a Northeast Florida high school should have prevented a transgender male student from using boys’ bathrooms.

The lawsuit has drawn attention from dozens of the nation’s largest corporations, 70 anti-sexual assault and domestic violence organizations, myriad LGBT advocacy groups and the U.S. Department of Justice.

The case has also become a battleground for 40 states and the District of Columbia that signed onto briefs in the case, which stemmed from a St. Johns County school board policy that prevented Drew Adams from using boys’ restrooms.

Adams and his mother filed the lawsuit in 2017 after Nease High School required him to use a gender-neutral, single-stall bathroom or girls’ bathrooms. A U.S. district judge sided with Adams, leading to the St. Johns County School Board taking the case to the 11th U.S. Circuit Court of Appeals.

The full federal appeals court heard arguments Tuesday after a three-judge panel of the court ruled in favor of Adams in July. The Atlanta-based court subsequently vacated the panel’s ruling and ordered what is known as an “en banc,” or full court hearing.

The arguments focused on whether the school-board policy violates constitutional equal-protection rights and Title IX, a federal law that bars sex-based discrimination. The board maintained that the restrictions on Adams were necessary to address students’ privacy and safety concerns.

“The question here is whether the policy discriminates against transgender students, and isn’t it the case that transgender students have to use either the birth-assigned sex bathroom or a unisex bathroom?” Judge Robin Rosenbaum asked Jeffrey Slanker, an attorney who represents the school board. “Why isn’t that discriminatory towards transgender students?”

“I wouldn’t concede the policy discriminates against any student,” Slanker said, adding that the policy “had nothing to do with Mr. Adams’ gender identity or any students’ gender identity.”

The school district decided that Adams had to use the bathroom of the gender that was identified on district enrollment documents. Adams enrolled in the school district as a girl in fourth grade and came out as a transgender boy to his parents in eighth grade, court records said. He graduated from high school as the case continued.

“Andrew Adams was treated differently because he was identified as one sex at birth and he identifies as male today,” Tara Borelli, an attorney with Lambda Legal who represents Adams, told the appeals court Tuesday, adding that is “precisely what” a 2020 U.S. Supreme Court ruling in a case known as Bostock v. Clayton County “says is impermissible sex discrimination.”

But some judges expressed concern about how far schools would have to go to accommodate students.

“What happens when you have a gender-fluid student who is anatomically, biologically a male and identifies on Monday as a female and wants to use the restroom?” Judge Barbara Lagoa, a former Florida Supreme Court justice, asked.

Borelli pointed to a policy that she said has been in place for “many, many years” in Broward County.

“What they do is they try to make sure the request is genuine,” she said.

Previous court testimony “showed that no one ever uncovered any problems with pretenders,” Borelli said.

But Judge Kevin Newsom pressed Borelli about a hypothetical student who “just sort of like truly doesn’t fit in with the boys, is bullied by the boys and begs for an accommodation to participate in the girls’ PE class and claims that he will be emotionally traumatized” if not permitted to do so.

“Isn’t that likewise discrimination on the basis of sex under your theory?” Newsom asked.

“You know, I’m not sure I’ve heard of such a hypothetical student, and it certainly wouldn’t speak to a transgender student,” Borelli said. “The evidence here in this case is that a transgender student is someone who consistently, persistently and insistently identifies as a sex different than their sex at birth. … I’m not sure the answer would be to send that student to the girls’ locker room, your honor.”

Elizabeth Hecker, an attorney with the U.S. Department of Justice’s Civil Rights Division, said there might be other ways for schools to address a cisgender student in the scenario Newsom described without violating the Title IX anti-discrimination law.

“Whereas here, the only way to remedy Mr. Adams’ harm was to let him use the men’s bathroom because the lack of being able to do so was what was harming him,” Hecker said.

Judge Charles Wilson asked Slanker how the school would handle students who had “anatomical changes” between 11th and 12th grades.

“Does the policy say anything about that?” he asked.

“The policy is fairly simple. It just says that a biological male must use the men’s room, biological women must use the women’s room,” Slanker said.

In a brief filed in October, the school board argued that its policy “withstands constitutional scrutiny because it is based on the real and enduring differences between the sexes. To recognize these differences when making policy decisions is not a form of sex-based stereotyping. The School Board’s policy is simply not the type of stereotype-driven classification that the Equal Protection Clause forbids.”

But the Justice Department disputed the board’s rationale, relying in part on the Bostock decision that found the Civil Rights Act of 1964 protects employees from discrimination because they are gay or transgender.

“First, prohibiting Adams from using the boys’ restrooms does not further the School Board’s asserted interest in privacy because the boys’ restrooms at Adams’ high school have individual, private stalls that are designed to prevent exposure of a student’s anatomy,” the Biden administration’s lawyers wrote in a November brief. “Second, the school board’s refusal to accept updated documents in determining a transgender student’s sex is arbitrary.”