Appeals court reviews Florida transgender restroom case

TALAHASSEE – In a closely watched case that could have national repercussions, a federal appeals court on Tuesday peppered lawyers with questions in a lawsuit over whether a northeast Florida high school should have barred a transgender student to use the boys’ toilets.

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

The case also became a battleground for 40 states and the District of Columbia who signed briefs in the case, which stemmed from a St. Johns County School Board policy that prevented Drew Adams from using the boys’ toilets.

Adams and her mother sued in 2017 after Nease High School asked her to use a gender-neutral one-stall bathroom or a girls’ bathroom. A U.S. District Judge sided with Adams, leading the St. Johns County School Board to take the case to the 11th U.S. Circuit Court of Appeals.

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The full federal appeals court heard arguments Tuesday after a three-judge court panel ruled in favor of Adams in July. The Atlanta court later overturned the panel’s decision and ordered what is called an “en banc” hearing, or full hearing.

The arguments centered on whether the school board’s policy violated constitutional rights to equal protection and Title IX, a federal law that prohibits discrimination based on sex. The board argued that the restrictions placed 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 true that transgender students have to use either the birth-assigned sex toilet or a unisex toilet?” Judge Robin Rosenbaum asked Jeffrey Slanker, an attorney who represents the school board. “Why doesn’t this discriminate against transgender students? »

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“I would not concede that the policy discriminates against a student,” Slanker said, adding that the policy “had nothing to do with Mr. Adams’ gender identity or the identity of type of students”.

The school district ruled that Adams must use the bathroom of the gender identified on the district’s 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, according to court records. He graduated from high school as the case continued.

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

But some judges have worried about how far schools should go to accommodate students.

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

Borelli pointed to a policy she says 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.

Earlier court testimony “showed that no one ever discovered any issues with the suitors,” Borelli said.

But Judge Kevin Newsom pressed Borelli about a hypothetical student who “really doesn’t belong with the boys, is bullied by the boys, and asks for accommodation to attend the girls’ PE class and claims he will be emotionally traumatized” if he is not allowed to do so.

“Isn’t that also sex discrimination according to 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 different sex than their sex at birth. … I’m not sure the answer would be d send that student to the girls’ locker room, your honor.

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Elizabeth Hecker, an attorney with the Civil Rights Division of the U.S. Department of Justice, said there may be other ways for schools to address a cisgender student in the scenario Newsom described without breaking the law. Anti-Discrimination Title IX.

“Whereas here the only way to fix Mr. Adams’ hurt was to let him use the men’s room because not being able to was what hurt him,” Hecker said.

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

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

“The policy is quite simple. It just says a biological male should use the male chamber, biological females should use the female chamber,” Slanker said.

In a brief filed in October, the school board argued that its policy “stands up to constitutional scrutiny because it is grounded in real and enduring gender differences. Recognizing these differences when making political decisions is not a form of gender stereotyping. School board policy is simply not the kind of stereotype-based classification that the equal protection clause prohibits.

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

“First, prohibiting Adams from using the boys’ restroom does not reinforce the school board’s asserted interest in privacy, because the boys’ restrooms at Adams High School have individual, private stalls designed to prevent the exposure of a student’s anatomy,” the Biden said. the administration’s attorneys wrote in a November brief. “Second, the school board’s refusal to accept updated documents to determine a transgender student’s gender is arbitrary.”

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