A federal appeals court panel issued a revised opinion Wednesday that again rules for a Florida transgender student but on narrower grounds than a decision released last year.
The new opinion suggests some behind-the-scenes wrangling on whether the full appeals court would reconsider the case and reveals a deep rift over the issue of legal protections for transgender students.
Last August, the panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled 2-1 for student Drew Adams on the grounds of both the 14th Amendment equal-protection clause and Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools.
The new opinion in Adams v. St. Johns County School Board rules only on equal-protection grounds for Adams, who challenged a school board policy that barred him from the boys’ restroom after he began presenting as a boy when he entered Nease High School in Ponte Vedra, Fla., in 2015.
Chief Judge Beverly B. Martin said that just after the panel had issued its original ruling last August, one member of the full 11th Circuit court took a procedural step that delayed the issuance of a final judgment in the case. That was evidently to give the full court time to consider whether to rehear the case.
“In an effort to get broader support among our colleagues, we vacate the opinion issued on August 7, 2020, … and replace it with this one,” Martin wrote. “This revised opinion does not reach the Title IX question and reaches only one ground under the Equal Protection Clause instead of the three Equal Protection rulings we made in the August 7 opinion.”
Meanwhile, the majority and the dissent in the revised panel opinion traded some sharp barbs.
“The majority of the pages in the dissent are directed at an opinion no longer in existence,” Martin wrote. “Indeed much of the dissent continues to shadowbox with an opinion we never wrote. We view the dissent’s recycling of outdated arguments as an apt metaphor for its analytical approach.”
Judge William H. Pryor Jr., who slightly revised the dissent he wrote last August but stood by his views in support of the school district, said “the new majority opinion is shorter, but it is no less wrong.”
“By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status,” Pryor said. “And based on this recasting, it reached the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom.”
The new opinion in the Florida case comes as transgender student rights continue to be hotly debated in courtrooms and state legislatures. At least one other federal appeals court has ruled that Title IX protects transgender students as they seek to use school restrooms and locker rooms consistent with their gender identity.
The U.S. Supreme Court recently declined to hear the appeal of a Virginia school board in the case of transgender student Gavin Grimm. The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., in 2020 had ruled for Grimm on Title IX and equal protection grounds. On Title IX, the 4th Circuit held that the analysis was similar to that made by the Supreme Court when it interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation or gender identity in employment.
The Supreme Court’s refusal to hear the appeal of the 4th Circuit decision was not a ruling on the merits, and the high court may have wanted to allow transgender student rights to continue to percolate in lower courts.
The majority and dissent in the revised 11th Circuit panel opinion in the Adams case continued to squabble over factual and legal matters.
Adams used the boys’ restroom for his first nine weeks of 9th grade, court papers say, but after a complaint administrators informed him he could use only the girls’ restroom or a gender-neutral, single-stall restroom in the school office. The St. Johns district had adopted a “best practices” policy for LGBTQ students that included using transgender students’ preferred pronouns. But it declined to allow transgender students to use restrooms or locker rooms consistent with their gender identity.
In the revised opinion, the majority said the St. Johns school board’s policy was arbitrary and the district failed to accept Adams’s amended Florida birth certificate, which lists him as male, and instead relied on Adams’s birth certificate from the time of his enrollment, which listed Adams as female.
The school district’s policy “requires that a student’s enrollment package prevail over current government records, even though those government-issued documents constitute controlling identification for any other purpose,” Martin said for the majority.
The majority concluded by saying that because it was ruling for Adams based on the equal-protection clause, it did not need to address his Title IX claim.
Pryor, in dissent, continued to argue that the majority’s reasoning threatens sex-separate restroom policies in schools. And he said the school district was under no obligation to “accept updates” about a student’s gender identity as expressed on state documents.
“A student’s sex does not come with an expiration date, and it does not require periodic updates to confirm its continuing accuracy,” Pryor said. ”The object of the schools’ practice with respect to the enrollment documents is to determine students’ sex, not their gender identity.”
Lambda Legal, a New York City-based LGBTQ civil rights organization that represents Adams, issued a statement that praised the revised ruling, without addressing its more narrow scope or any potential behind-the-scenes drama.
Adams is now a college student in Florida.
Lawyers for the St. Johns district, which asked the full 11th Circuit to rehear the case, did not immediately respond to a request for comment.