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Eleventh Circuit Grants En Banc Rehearing in Transgender Restroom Case

August 30, 2021

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By: Lily Crespo Esq.

Quick Takeaway: The Supreme Court’s decision in Bostock, is a good reference point for bathrooms/locker rooms, when taken into context with the guidance on this topic in OCR’s “Dear Educator Letter’ issued on June 23, 2021.  OCR was explicit in its interpretation of the Bostock ruling, as well as its clarification that the Supreme Court’s decision in Bostock applies to the Department’s interpretation of Title IX.  The Court held, “its impossible to discriminate against a person because of their sexual orientation or gender identity without discrimination against that individual based on sex.”  OCR has stated that reasoning applies regardless of whether the individual is an adult in a workplace or a student in school.

What happened: Back in August of last year, the 11th circuit ruled that “A public school may not punish its students for gender nonconformity…Neither may a public-school harm transgender students by establishing arbitrary, separate rules for their restroom use. After the U.S. Supreme Court declined to review the case, the Eleventh Circuit granted en banc rehearing in Adams v. School Board of St. Johns County, a case presenting the question whether a school board violated the constitutional and Title IX rights of a transgender student by barring her from using the boys’ restroom.

Background:

  • Drew Adams, 19, a former student at Allen D. Nease High School in Ponte Vedra, Florida, transitioned in 2015 and began using the boys’ restroom at the start of his freshman year, without incident. However, an anonymous complaint was soon lodged against him, and the school, taking its cues from the St. John’s County School Board, told Adams he could only use gender-neutral restrooms.
  • In 2017, Adams sued the school board, arguing its district-wide policy barring transgender students from sex-segregated restrooms that match their gender identity is discriminatory, violating students’ rights under both the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments Act of 1972.
  • In court, Adams’ lawyers argued that the policy sends a message to transgender students that they are undeserving of the privacy, respect, and protections afforded to their cisgender peers.
  • The district, meanwhile, argued that allowing Adams to use the boys’ restroom would pose a threat to the privacy or safety of cisgender students, who might feel uncomfortable sharing facilities with someone they consider to be of the opposite sex.
  • In July 2018, a federal judge ruled in Adams’ favor, outright rejecting the school board’s arguments in his opinion. The school board then appealed the ruling to the 11th Circuit.
  • But the 11th Circuit upheld the lower court’s ruling in 2-1 decision, finding that the district’s policy is indeed discriminatory and that Adams should have been allowed to use the boys’ restroom.

What the decision to re-hear the case means: This is another twist in this Florida case, as the last action by the Court was to revise the opinion stripping Title IX references from the decision.  It will be interesting to see how the entire panel handles this case and what language will or not be included in the written opinion.

The grant of en banc rehearing might ultimately tee the issue up for Supreme Court review and thus enable the Court to minimize the damage from its serious error in failing to grant certiorari in the Fourth Circuit case of Gloucester County School Board v. Grimm.” In the Grimm case, the 4th U.S. Court of Appeals concluded that a Virginia school district could not lawfully stop a biologically female trans-identified student from using boys’ bathrooms. In June, the Supreme Court refused to hear an appeal in the Grimm case, allowing the circuit court decision to stand.

  • Both the 11th Circuit and the 4th Circuit decisions cited last June’s Supreme Court ruling in Bostock v. Clayton County, a decision finding that employers are not permitted to fire someone based on sexual orientation or gender identity.
  • Although the Bostock ruling pertained to employment matters, the ruling has been cited in other legal decisions and policies enacted during the Biden administration.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

Kaleva Law

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