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Eleventh Circuit En Banc Holds Transgender Boy Not Entitled to Use Boys’ Restroom at Florida High School

Posted on: January 1st, 2023 by Art Leonard No Comments

Ruling in Adams v. School Board of St. Johns County, Florida, 2022 WL 18003879, 2022 U.S. App. LEXIS 35962 (Dec. 30, 2022), a case that could have been dismissed as moot if U.S. District Judge Timothy Corrigan (M.D. Fla.) had not awarded $1,000 in damages to Drew Adams in 2018, the U.S. Court of Appeals for the 11th Circuit, sitting en banc, voted 7-4 to reverse the district court and two vacated 2-1 opinions by a three-judge panel and hold that denying Adams, a transgender boy, access to the boys’ restrooms at Nease High School did not violate his rights under either the Equal Protection Clause or Title IX of the Education Amendments of 1972.  The 11th Circuit’s ruling makes a binding precedent for the federal courts in Florida, Alabama and Georgia.

All of the active Republican appointees on the court (six by Donald Trump, one by George W. Bush), voted to overrule the panel and district court opinions, which had found that the St. Johns County School Board violated Adams’ constitutional and statutory rights.  The active Democratic appointees (one by Bill Clinton, three by Barack Obama), dissented.  The three-judge panel that had ruled in favor of Adams had also split on party lines, with Obama appointees voting for Adams and a Bush appointee dissenting.  The only Republican appointee to vote in favor of Drew Adams was District Judge Corrigan (now serving as Chief Judge of the Middle District of Florida), who was appointed by President George W. Bush.

Circuit Judge Barbara Lagoa’s opinion for the court parted company from rulings in favor of transgender boys presenting the same issues that were previously issued by the 4th Circuit (Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir.  2020) and the 7th Circuit (Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F. 3d 1034 (7th Cir. 2017).  Lambda Legal, which is representing Drew Adams, has a difficult strategic decision to make, since the split of circuit opinion increases the odds that the Supreme Court would grant review of this case, and the current ideological tilt of the Court does not necessarily bode well for a reversal.

Drew Adams first enrolled as a student in the St. Johns school system in the fourth grade, at that time having a birth certificate identifying him as female, although the testimony in this case (which went through a three-day trial in December 2017) showed that Adams had identified as a boy from a very young age.  When he began attending Nease High School, he continued his practice of using the boys’ restrooms without incident for some time until two girls complained to the school administration.  No boys had ever complained about Adams using the boys’ restrooms.  Adams was then instructed that the only restrooms he could use were single-user gender neutral restrooms or the girls’ restrooms.

The school board had set up a task force to research issues presented by transgender students, and it had adopted a policy that students would be called by their desired names and pronouns and treated consistently with their gender identity except for the use of single-sex facilities.  As to those, the district insisted that students must be treated as the sex identified on their enrollment papers in the school district.  Thus, Adams, who enrolled in the 4th grade, would be treated as a girl for these purposes, and the district restricted the use of restrooms – the point of contention in this case – on the basis of what they called “biological sex,” which was the sex reflected on the birth certificate.

Ironically, by the time this issue became a point of legal contention, Adams had already transitioned as much as was possible before age 18, including undergoing gender-affirming hormone treatment, dressing and grooming as a boy, obtaining a legal name change, and obtaining a new birth certificate identifying him as male.  But the school district insisted that a student’s sex for purposes of restroom access was fixed at the time of their enrollment, regardless of such subsequent developments.

During the trial, it was established that if a student who was identified as female at birth transferred to the St. Johns County schools after having transitioned consistent with a male gender identity and had obtained a new birth certificate showing them as male, they would be treated based on their enrollment papers as male.  Thus, a transgender boy’s ability to access a restroom was not really based on “biological sex” (whatever that might mean) but was actually based on the sex identified on legal documents at the time they enrolled in the school district.  And the district court received expert testimony, not rebutted by the school district, that the phrase “biological sex” as used by scientists encompasses more than observable genitalia.  There was also unrebutted expert testimony that Adams should be considered a biological male.

Adams filed suit in June 2017 in the Middle District of Florida.  At the time, he was a “rising junior” at Nease.  The trial was held in December 2018, resulting in Judge Corrigan’s 2018 decision, 318 F. Supp. 3rd 1293.  Judge Corrigan concluded that the district’s policy, as applied to Adams, violated his equal protection and Title IX rights.  By then, case law in the 11th Circuit had long since recognized – in Glenn v. Brumby, 663 F.3d. 1312 (2011), a public employee discharge case — that discrimination based on gender identity was a form of sex discrimination for equal protection purposes, subject to “heightened scrutiny.”  The district judge concluded that the school district failed to prove that barring Adams from using the boys’ bathrooms would significantly advance an important governmental interest, at least in part because had Adams transferred into the district after transitioning, he would have been allowed to use the boys’ restroom, fatally undermining the school district’s contention that their “important governmental interest” was protecting the privacy rights of cisgender boys.  The judge concluded based on the trial record that Adams was a boy who was entitled to use facilities intended for boys.  Judge Corrigan also found a violation of Title IX, rejecting the school district’s argument that Title IX regulations authorizing schools to maintain separate restroom facilities for boys and girls made their policy lawful.  He issued an injunction ordering that Adams, who was still a student at that time, be allowed to use the boys’ restrooms at the high school and awarded him $1,000 in damages.  The district promptly appealed to the 11th Circuit.

A three-judge panel voted 2-1 in August 2020, 968 F.3d 1286, to affirm Judge Corrigan’s ruling on both constitutional and statutory grounds.  The dissenting judge was Chief Judge William H. Pryor, Jr., who blocked the court’s mandate from being issued and effectively coerced the majority of the panel to reconsider the basis for its ruling.

In a July 2021 decision, again 2-1, 3 F.4th 1299, the same panel affirmed Judge Corrigan’s ruling but only on constitutional grounds, with the majority apparently hoping that limiting its opinion to that extent would meet Judge Pryor’s objection that there was no existing 11th Circuit precedent holding that Title IX extended to discrimination because of gender identity.  But Pryor blocked the mandate again, and a majority of the active judges on the 11th Circuit voted to vacate the panel decisions and reconsider the case by the full court, which then consisted of 12 judges.  Since then, however, one of Obama’s appointees, Circuit Judge Beverly B. Martin, who wrote the two panel decisions, has retired, and President Biden’s nominee has not yet been confirmed, so an eleven-judge bench convened to reconsider the case.

As Adams was a “rising junior” when he filed this lawsuit in June 2017, he was no longer a student at Nease High School when the en banc case was argued, and the issue of the injunction is effectively moot.   Judge Corrigan’s 2018 decision had limited the injunction just to Adams, as the case was not brought as a class action on behalf of all transgender students and, he pointed out, all of the factual evidence in the case related to Adams, not to any other transgender students.  However, since the judge awarded Adams damages, the school district’s appeal is not moot.

Judge Lagoa’s opinion for the majority treats the issue before the court as whether it violates the Constitution or Title IX for a school to have a policy that student restroom access is based on “biological sex.”  The dissenting opinions point out that this is not really the question before the court, because the school district’s policy is based on sex as identified on enrollment papers, not “biological sex identified at birth,” and, more fundamentally, Adams is not challenging the right of the school district to maintain single-sex multi-user bathrooms.  Rather, he is arguing that as a transgender boy, recognized as male by the state of Florida through the issuance of a new birth certificate which required the submission of medical evidence of transition, he is entitled to use the boys’ bathroom the same as any other boy.  Adams, in his state of transition, claims to be entitled to be treated the same as cisgender boys.

The underlying basis of Judge Lagoa’s opinion, of course, is that it is an article of faith among most Republican conservatives — the “party line,” as it were – that “biological sex” as identified at birth is immutable, and that no matter what transitional or gender-affirming treatment a person receives, they remain “biologically” the sex by which they were identified at birth, normally through visual inspection of their genitalia by the delivering physician.  This is reflected in the fact that throughout her lengthy opinion, Judge Lagoa never refers to Adams as he/his/him, but rather just by using the surname “Adams.”  Judge Jill Pryor, a member of the original three-judge panel and author of the lengthiest dissenting opinion, refers to Adams by pronouns consistent with his gender identity.

As to the equal protection analysis, Lagoa asserts that equal protection applies to intentional discrimination between similarly-situated people.  As far as the majority is concerned, Adam remains a “biological girl” and thus is not similarly situated with the cisgender boys who are allowed to use the boys’ restroom.  The majority of the court holds that there is no discrimination on the basis of sex and thus no equal protection violation.  They also reject a a disparate impact theory, observing that equal protection is limited to intentional discrimination.  They do accept, based on 11th Circuit precedent, that if there was discrimination, it would be subject to “heightened scrutiny,” but they find that the school district’s policy would survive that test based on the district’s concern for the privacy interests of the cisgender boys who don’t want a “biological girl” present in their bathrooms.  They reach this conclusion by ignoring all the nuances of Judge Corrigan’s factual determinations on the privacy issue, and also the contrary rulings by other courts that have rejected such privacy arguments in the context of transgender school restroom cases, such as Grimm and Whitaker.

Turning to Title IX, the court rejects the three-judge panel’s application of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to Title IX.  In Bostock, the Supreme Court held, among other things, that an employer who fires an employee because of their transgender status has discriminated “because of sex,” subjecting the employer’s action to attack under Title VII of the Civil Rights Act of 1964.  This was because, the Court ruled, it is impossible to discriminate because of transgender status without discriminating because of sex.  The Trump administration’s immediate reaction to this ruling was that it applied only to Title VII, not to any other federal sex discrimination law, such asTitle IX, and this position has also become part of the “party line” among many of Trump’s judicial appointees.

It is true that in the Bostock decision, Justice Neil Gorsuch, writing for the Court, asserted that the Court was deciding only the issue before it – whether a person discharged because they are gay or transgender can bring a discrimination claim under Title VII – and was not deciding anything about bathrooms or other statutes.  But the logic of that decision has struck many lower federal courts, as well as state courts interpreting their own civil rights laws – as relevant to deciding that laws outlawing sex discrimination should now be interpreted to ban gender identity discrimination.  The dissenters note and cite the relevant cases.

Judge Lagoa also found that because Title IX is a spending clause case (i.e., a case enacted by Congress to place conditions on the receipt of federal funding by educational institutions), the school district would have to have been on notice that accepting federal funding would obligate it to provide restroom access according to gender identity to transgender students, and the court found that this requirement was not satisfied, thus insulating the school district from Adams’s damage claim.

In addition to writing the opinion for the court, Judge Lagoa wrote a separate concurring opinion to focus on an issue not properly before the court: her contention that ruling in favor of Adams under Title IX would destroy girls’ scholastic sports competition.  This separate opinion is totally unwarranted and inappropriate, first because the judge already devoted some irrelevant discussion to this issue in her opinion for the court, and secondly because she asserts facts that are not based on any trial record in this case, as the issue of transgender girls participating in girls’ sports has nothing to do with the issue of transgender boys using boys’ restrooms, implicating a completely different universe of relevant facts.

The dissenting opinions filed by Circuit Judges Charles R. Wilson, Robin Rosenbaum, and Jill Pryor, take on the majority opinion in detail, pointing out the numerous flaws in reasoning and failure to apply precedent honestly.  Judge Wilson emphasizes that the court’s narrow view of “biological sex” fails to take account of knowledge about divergent sexual identities, being so crudely reductionist that it creates all kinds of interpretive problems.  How would the school district deal with an “intersex” student, for example?  Judge Pryor’s dissent, the lengthiest, picks up from the detailed panel opinions by Judge Martin and points out the blatant fallacies strewn through Judge Lagoa’s opinion.

11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

Posted on: March 12th, 2017 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.