The 11th Circuit Court of Appeals ruled on Friday that the St. Johns County school district discriminated against a transgender high school student by denying him the right to use the boys’ bathroom.
The decision has various implications for Flagler County and Florida, as the 11th District’s decisions have jurisdiction on the entire state. As with the U.S. Supreme Court’s decision earlier this summer applying the definition of “sex” to include “gender identity,” the 11th Circuit’s decision can be broadly interpreted to apply beyond bathrooms to matters of transgender equality, and will put in question such arrangements, as at Matanzas High School in the recent past, of isolating bathrooms used by transgender students away from campus mainstreams.
The decision follows months of debates in Flagler over the wording of a non-discrimination policy that did not include the words “gender identity.” The school board approved that policy a few months ago , and has since considered the Supreme Court decision to render moot any further need to revisit the policy.
The Full Oral Arguments Before the 11th Circuit
One other wrinkle: Cathy Mittelstadt, the Flagler superintendent, was an assistant superintendent in St. Johns County when the transgender case there was litigated, and she testified in the initial trial on behalf of the district, in defense of the policy both the district and appeals court found to be discriminatory. Mittelstadt had declined to answer questions emailed to her before she was interviewed for the Flagler job.
“It was an opportunity for everyone to reflect on the ever-changing society,” Mittelstadt said today. “Back in 2015, knowing the community I was serving, we were doing a wonderful job trying to ensure the rights of all of our kids.”
“Where I am right now is making sure all the students’ needs are met, based on the ruling,” the superintendent said. “The legal implications demonstrate that students, when they have a gender identity that they brought forward to the school officials we will absolutely work with those students to make sure they can access the bathrooms” that they wish to use in accordance to the sex they identify with. “In difficult circumstances we find a way to create a resolution that’s beneficial to everyone.”
It isn’t yet clear whether the St. Johns district is appealing. “We are still in pending litigation so it remains inappropriate to comment on or try this case in the media,” Christina Langston, the district’s spokesperson, said in a statement.
In May, the Fourth Circuit Court of Appeals heard an almost identical case, that of Gavin Grimm, a transgender student prohibited from using the boys bathroom at his Virginia high school. The three-judge panel in that case was divided during oral arguments (much as the 11th circuit panel was). If it renders a decision different from that of the 11th, it increases the likelihood that the U.S. Supreme Court will taken appeal.
Drew Adams, the student at the center of the St. Johns case, just graduated high school. His birth certificate listed him as a female. He was never comfortable with the designation. He considered himself a boy “with every fiber of my being,” and in eighth grade realized he was transgender. Mental health professionals confirmed it. A psychiatrist recommended he transition as a boy.
Socially transitioning to using the men’s restroom, Adams testified at trial, is “a statement to everyone around me that I am a boy. It’s confirming my identity and confirming who I am, that I’m a boy. And it means a lot to me to be able to express who I am with such a simple action because . . . I’m just like every other boy,” according to the court decision. He masculinized his body under a physician’s supervision, underwent a double-mastectomy to remove breast tissue and changed his legal documents to reflect his sex, including his designation as a male on his driver’s license and his original birth certificate.
Transitioning led to “the happiest moments of my life,” he said at trial, “finally figuring out who I was,” and being “able to live with myself again.”
He attended Nease High School in St. Johns County starting in ninth grade. Teachers and staff respected his choice in almost every way. The exception was his use of the bathroom. He was forced either to use the girls’ bathroom, which he considered an “insult,” or he could use a single-stall, gender-neutral bathroom–the school’s separate-but-equal offer–which he found “humiliating” and isolating. He sued, considering the conditions a violation of his constitutional rights under the 14th Amendment’s equal protection clause, and under Title IX, which prohibits discrimination based on gender.
He’d actually used the boys bathroom for the first six weeks of school without an issue. Boys didn’t complain, nor would the school ever get a complaint from a male student. Two unidentified girls did, when they saw Adams go into the boys bathroom.
There was no written policy. What rule the school invoked was based on custom. Since Adams had enrolled in St. Johns County schools as a girl in the fourth grade, he was still considered a girl by the district bureaucracy, which took no heed of his transition or legal documents. Ironically, the school imposed its restriction on Adams the same year–2015–that the district was rolling out its “best practices” regarding LGBTQ students, which directed faculty to use a transgender student’s preferred pronouns and names and allowed students to dress and act in accordance with the gender of their choice. The policy also stated that “Transgender students will be
given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex,” even though in other Florida districts, transgender students were allowed to use the bathroom of their choice.
The St. Johns district, the appeals court ruling states, “feared any student might be able to gain access to any bathroom facility by identifying or pretending to identify as ‘gender-fluid.’ The School District, however, had never encountered or even heard of any gender-fluid students or pretenders seeking access to all bathroom facilities.”
Federal District Judge Timothy Corrigan had toured the school with both sides’ attorneys before the three-day trial in December 2017, then ruled in Adams’s favor. Upholding that decision, Circuit Judge Beverly Martin credited Adams, “who properly tees up the constitutional issue in this case. The School Board’s bathroom policy singles out transgender students for differential treatment because they are transgender,” she wrote, making the approach transparently discriminatory. The board’s aim–to protect privacy–is “worthy” and “legitimate,” the judge ruled, but the board “demonstrated no substantial relationship between excluding Mr. Adams from the communal boys’ restrooms and protecting student privacy.” Rather, the board hypothesized that a privacy violation might take place, and did so “arbitrarily.”
The policy itself was inconsistent, since, if a student born a girl but already transitioned as a boy had enrolled after his transition, and his school papers would have reflected the fact, he would have been allowed to use the boys bathroom. So the policy “does not even succeed in treating all transgender students alike,” the decision found, ruling in Adams’s favor on both constitutional and statutory grounds.
“A public school may not punish its students for gender nonconformity,” Martin wrote. “Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.”
In his dissent, William prior, the chief judge of the 11th circuit, started with a reflection on changing times that pointed to his assertion of unchanging standards: “Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for
good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex.”
He then contended that the St. Johns policy did not violate the 14th Amendment’s equal protection clause because it’s grounded in privacy interests. “The goal of the policy is to restrict all students, not only transgender students, from the bathroom of the
opposite sex,” he wrote. “Birth certificates are an almost perfect proxy for determining a student’s sex. Even if all transgender students in the school district used bathrooms that did not align with their sex, the policy would still be 99.96 percent accurate in
separating bathrooms by sex, which satisfies intermediate scrutiny.”
He concluded: “The majority misunderstands the policy at issue, ignores decades of precedent, dismisses any sex-specific interest in bathroom privacy, and flouts foundational principles of statutory interpretation. In the process, it issues a holding with radical consequences for sex-separated bathrooms. But for all of its errors, the majority opinion cannot obscure what should have been the bottom line of this appeal: there is nothing unlawful, under either the Constitution or federal law, about a policy that separates bathrooms for schoolchildren on the basis of sex.”
Martin and Jill Pryor, the judge who joined her in the majority, were appointed to the 11th Circuit by President Obama. William Pryor was appointed by President George W. Bush.
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