Judges on the federal appeals court in Atlanta on Thursday peppered lawyers with questions in a case that could set an important precedent for bathroom access by transgender high school students.
Two judges, both members of the more liberal wing of the 11th U.S. Circuit Court of Appeals, seemed ready to uphold a lower-court ruling that granted transgender student Drew Adams access to the boys’ bathroom at Nease High School in Ponte Vedra, Florida. The third judge, one of the court’s more conservative members, expressed concern that a court ruling in Adams’ favor could possibly lead to the overturning of policies that separate boys’ and girls’ bathrooms.
Adams, joined by his mom, sued his county school board two years after he was told he could no longer use the boys restroom at Nease High. He contended the board violated his civil rights by discriminating against him because of his sex.
“This case is about the right of transgender students to equal dignity,” Tara Borelli, a Lambda Legal lawyer representing Adams, told the three-judge panel.
In essence, the school board’s policy told Adams “you shall not pass, we’ll padlock the bathroom door,” she said. “Your presence there is not acceptable.”
But Jeffrey Slanker, a lawyer representing the St. Johns County School Board, argued that the board’s policy segregating bathrooms on the basis of a student’s biological sex was acceptable.
“The Supreme Court has held the differences between the sexes are real and enduring,” he said. As for the policy, it advances the school board’s interest in protecting student privacy in the bathrooms, he said.
But Judges Beverly Martin and Jill Pryor, appointees of President Barack Obama, noted that the school policy says that a transgender student who identifies himself as a boy can’t use the boys’ bathroom if the student was identified as a girl in papers submitted prior to enrollment.
But what if a transgender boy transfers to Nease High from another school and identifies himself as a male on the enrollment papers? Pryor asked. That student would be allowed to use the boys’ bathroom, right?
“That’s correct, your honor,” Slanker conceded.
That would have also been true if Adams had initially identified himself as a boy, Martin interjected. “If so, we wouldn’t be here. He’d have been using the boys’ bathroom.”
Martin also pressed Slanker to provide evidence of any instance of complaints over privacy involving transgender students in Nease High bathrooms.
“There are no concrete instances,” Slanker replied.
Because Martin and Jill Pryor seem inclined to rule in Adams’ favor, it appears likely he’ll get the decision he wants. But getting a vote in his favor by Judge Bill Pryor, an appointee of President George W. Bush, could be of paramount importance.
If Judge Bill Pryor dissents, it’s possible the entire 11th Circuit court, comprised of 12 members and now decidedly conservative, could revisit the three-judge panel’s decision.
And Bill Pryor expressed concern about a ruling in Adams’ favor. Would this mean that transgender boy students could get access to boys’ locker rooms and showers? he asked.
And what about a female student who is tired of using the girls’ bathroom because there’s always a line out the door, whereas that’s never the case with the boys’ bathroom, Pryor asked. Because of the delays, this student is often late to class, giving her anxiety and leaving her with poor grades.
“I’m sick of it, I want to use the boys’ bathroom,” Pryor said, finishing his hypothetical. Why couldn’t this girl seek access to the boys’ bathroom if the court rules in Adams’ favor? the judge asked.
Borelli replied that this case is only about a transgender boy who wants to use the boy’s bathroom. There’s no reason to consider “pure speculation and conjecture.”
Pryor said he understood that. “But now we have the prospect of a precedential decision,” he said. “I need to think about the next case.”
The three-judge panel is expected to issue its decision in the coming months.
Adams came out as transgender when he was 14. He began wearing masculine clothes and cut his hair like a boy. “I made all the changes to begin living as my authentic self,” he said in an interview Wednesday with The Atlanta Journal-Constitution.
In the summer of 2015, just before Adams began attending Nease High School, his mother informed officials that her son was transitioning and would be attending school as a boy. And for the first five weeks of school, Adams used the boys’ restroom without incident.
But Adams was soon called out of his history class and told over the intercom to go to the office. That’s when his guidance counselor told him that, from then on, Adams had to use the gender-neutral bathroom in the school office. The school would later erect a few other gender-neutral bathrooms. But Adams said they were so inconveniently located, he cut back on how much water he drank during the day.
To Adams, the school’s refusal to let him use the boys’ bathroom meant the school refused to accept who he was.
“There was a lot of shame and embarrassment,” he said. “It was very ostracizing. I felt like the school didn’t want me and didn’t value me for who I am.”
The following year, Adams began taking birth control to halt menstruation and testosterone to make his body more masculine. In 2017, he had a double mastectomy.
He also underwent a legal transition, changing his gender to male on his Florida driver’s license and birth certificate.
During this time, Adams and his mother, Erica Kasper, met with school officials on numerous occasions, asking them to change the policy. But their appeals were unsuccessful.
Finally, in June 2017, Adams and his mother decided to file a federal lawsuit against the school board. It was not an easy decision, but one that had to be made, Kasper said.
“If not us, who?” she asked. “If not now, when?”
The case was assigned to U.S. District Judge Timothy Corrigan, appointed to the bench by President George W. Bush. Five months later, Corrigan presided over a three-day trial, hearing testimony from experts, school officials and Adams.
Even though the county school board appealed the ruling to the 11th U.S. Circuit Court of Appeals in Atlanta, it did not ask Corrigan to keep the bathroom policy in force while the case was pending. This meant Adams could use the boys’ bathroom during his senior year.
“It was liberating,” Adams said, noting his friends celebrated Corrigan’s ruling with posts on social media.
In his meticulous, 70-page ruling, Corrigan dismissed each one of the school board’s concerns about a transgender student using the boys’ bathroom.
As for the school board’s privacy concerns, Corrigan noted that Adams must go to the bathroom inside a stall with a closed door because he can’t use a urinal. Also, the judge said, there is no evidence that a transgender boy would be any more likely to be curious about another student’s anatomy than any other boy. And if a student were concerned about other students seeing his anatomy, he could use one of the gender-neutral bathrooms, the judge said.
Corrigan ruled in Adams’ favor on equal protection grounds. He also found that the school board violated Adams’ right not to be discriminated against on the basis of sex under Title IX, a 1972 law covering school systems that receive financial aid from the federal government.
“Even if a school is otherwise prepared to accept a student as transgender, it is not surprising that allowing transgender students to use restrooms aligned with their gender identity is not an easy step,” Corrigan wrote.
“But neither was it easy when public restrooms were racially segregated,” he said. “To be sure, what the law requires and what some are comfortable with are not always the same.”
Adams, Corrigan added, poses no threat to the privacy or safety of his fellow students.
“Rather, Drew Adams is just like every other student at Nease High School, a teenager coming of age in a complicated, uncertain and changing world,” Corrigan wrote. “When it comes to his use of the bathroom, the law requires that he be treated like any other boy.”
Adams, who was an honor student at Nease High, is now a freshman at the University of Central Florida where he’s studying psychology and political science.
“I’m very hopeful the court will rule in our favor,” Adams said. “I realize how much bigger than me this is.”
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