While several federal courts around the country have consistently recognized transgender student rights in recent years, oral arguments this week before a full federal appeals court suggest a potential victory for those seeking to limit such rights.
A ruling by the U.S. Court of Appeals for the 11th Circuit, in Atlanta, to uphold a Florida school district’s restrictions on restroom access for a transgender boy could set up a clash in the U.S. Supreme Court, which has grown more conservative since a 5-4 majority provided a major victory on LGBTQ rights just two years ago.
And the latest legal developments come as multiple state legislatures weigh bills that would restrict transgender students in school sports or from using restrooms that correspond to their gender identity.
“In the last seven or eight years, transgender students’ claims under Title IX or the equal-protection clause [of the U.S. Constitution] have been succeeding,” said Anthony Michael Kreis, an assistant professor of law at Georgia State University and an LGBTQ rights advocate. The fact that the U.S. Court of Appeals for the 11th Circuit, in Atlanta, tossed out an earlier panel decision in favor of a transgender student and heard reargument as the full court was “alarming,” he said.
“I think there is a good chance the court will radically undo the progress that has happened across the country, and in ways that will tee it up for the U.S. Supreme Court,” Kreis said.
President Joe Biden has weighed in on transgender student rights
The Florida case was argued at a time when some 130 bills are pending in state legislatures that would restrict transgender students in some form, according to the American Civil Liberties Union, which advocates for such students.
Indiana, Iowa, and Utah are moving forward with measures that would limit transgender girls from participating in school sports, the ACLU says. In Arizona, bills on sports and restroom access are advancing. And the Florida House of Representatives on Thursday passed a controversial bill that would prohibit classroom discussion about sexual orientation or gender identity “in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.”
The measure “defines that there are certain instructions related to gender and sexual orientation that are just not appropriate at certain ages, and we define that as kindergarten through 3rd grade,” state Rep. Joe Harding, a Republican who is sponsoring the bill, told Fox News.
At the White House on Wednesday, Press Secretary Jen Psaki reminded reporters that President Joe Biden had issued a statement against the Florida bill earlier this month.
Biden said on Feb. 9 that “every member of the LGBTQI+ community—especially the kids who will be impacted by this hateful bill—to know that you are loved and accepted just as you are. I have your back, and my administration will continue to fight for the protections and safety you deserve.”
The Biden administration participated on Feb. 22 in the argument before the en banc, or full, 11th Circuit court in support of Andrew Adams, a former student in the St. Johns County school district in northern Florida.
Adams 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.
The St. Johns district had adopted a policy 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.
The district refused to accept Adams’s amended Florida birth certificate, which lists him as male, and instead relied on his birth certificate from the time of his enrollment, which listed Adams as female.
A federal district court ruled for Adams on claims under the 14th Amendment’s equal-protection clause and Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools.
A three-judge panel of the 11th Circuit ruled for Adams on the equal-protection claim over the strong dissent of one judge. The full 11th Circuit, which is dominated by Republican appointees and considered one of the most conservative among the federal appeals courts, agreed to throw out the panel decision and rehear the case.
The judges ask pointed questions involving gender-fluid students
Jeffrey Slanker, a lawyer representing the St. Johns school board, said, “There is a privacy interest in using the bathroom separate and apart from the other biological sex.”
He was pressed by some members of the court during an hourlong argument with livestreamed audio.
“Why wouldn’t the school district adopt a similar policy that other school districts and some states as a whole have adopted, which is, students use the bathrooms of the gender that they identify with?” said Judge Robin S. Rosenbaum.
Tara L. Borelli, representing Adams for the Lambda Legal Defense and Education Fund, told the court that “Andrew Adams is treated differently because he was identified as one sex at birth and he identifies as male today.”
She was questioned hard by several members of the court. Judge Barbara Lagoa asked her how schools should handle a gender-fluid student. Judge Kevin C. Newsom asked about an “anatomical, biological boy who is bullied and asks to be in girls’ physical education class.” Why wouldn’t that boy be considered as treated differently under the law if a school refused his request, the judge asked.
Another judge asked why the court should discount the government’s interest in avoiding sexual assaults in restrooms or locker rooms “just because they haven’t happened?”
Elizabeth P. Hecker, a lawyer with the U.S. Department of Justice’s civil rights division, also argued in support of Adams, focusing on the view that the board’s policy violates Title IX.
“The school board’s asserted interest is in privacy, and forcing Mr. Adams out of the boys’ restroom does nothing to promote privacy here,” she said.
A group of 18 states filed a friend-of-the-court brief in support of the school board.
“Even if Title IX could plausibly be interpreted to require educational institutions to ignore biological sex when assigning transgender students to restrooms, the states certainly did not have clear notice of that requirement,” their brief says.
Chris Erchull, a staff attorney with GLBTQ Legal Defenders & Advocates, a Boston-based group that filed a brief in support of Adams, said the case can be viewed narrowly as one about a single transgender student’s denial of access to the restroom consistent with his gender identity.
“But the arguments showed there is some tension there,” he said. “Some people do want to look at this as a broad question.”