Almost a year ago, the federal appeals court in Atlanta issued a landmark ruling that said transgender high school students must be granted access to bathrooms that correspond with their gender identity.
On Wednesday, the court substituted that opinion with a new one that ruled once again in the students’ favor. But accompanying the decision was a strong dissent by the 11th U.S. Circuit Court of Appeals’ chief judge that indicates the case may be far from over.
The closely watched case is another court victory for Andrew Adams, a transgender student who sought access to the boys’ bathroom at Nease High School in Ponte Vedra, Florida. The decision sets precedent over challenges to bathroom access policies in Georgia, Alabama and Florida, the three states under the 11th Circuit’s jurisdiction.
In August 2020, a three-judge panel ruled in Adams’ favor by finding the school’s access policy violated equal protection and Title IX, a federal civil rights law.
Judge Beverly Martin, author of both the original opinion and the one issued Wednesday, noted the new decision is “an effort to get broader support among our colleagues.” In other words, Martin is trying to prevent the full 12-member, and decidedly conservative, 11th Circuit court from throwing out her ruling and issuing a new one upholding the transgender bathroom ban. In her new opinion, decided on more narrow grounds, she was joined by Judge Jill Pryor.
The new decision did not consider whether the policy violated Title IX. Instead, it found in Adams’ favor only on equal protection grounds.
The Florida school district relies on information provided in a student’s enrollment documents when deciding whether that student uses the boys’ or girls’ bathroom, Martin wrote. When Adams filed his enrollment papers, he was identified as a female. That was before he transitioned, and it meant he could not use the boys’ bathroom.
But a student who has already transitioned before filing his or her enrollment papers is allowed to use the bathroom that corresponds with his or her new gender identity, Martin said.
Such a policy “targets some transgender students for bathroom restrictions but not others,” Martin wrote. “In this way, the policy is arbitrary and fails to advance even the school district’s purported interest.”
The policy is also irrational because the school district rejects information on current government records — such as a driver’s license — in favor of outdated information provided at the time a student enrolled, the ruling said.
Chief Judge Bill Pryor, who strongly dissented in the case a year ago, did so again, saying there is nothing unlawful under the Constitution or federal law about a policy that separates school bathrooms on the basis of sex.
The court’s majority is closing its eyes to “biological reality,” Pryor wrote, dismissing arguments as to which documents should be relied upon to determine gender. “Because a student’s sex does not change over time, the schools have no need to accept updates.”
The school district’s policy “substantially advances its objective to protect children from exposing their unclothed bodies to the opposite sex,” Pryor said. “And separating bathrooms by sex eliminates one of the most common opportunities for exposure to the opposite sex.”
Lambda Legal attorney Paul Castillo, a member of Adams’ legal team, noted that the U.S. Supreme Court recently declined to hear a Virginia school board’s appeal of a ruling that struck down a policy prohibiting a transgender student from using the boys’ bathroom.
With that decision and the 11th Circuit’s new ruling on more narrow grounds, Castillo said, “we hope that this will help bring this dispute to rest so that Andrew can have the final vindication he deserves and get on with his life.”
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