The 11th U.S. Circuit Court of Appeals last week ruled, in a 7-4 vote, that a Florida school district did not violate the U.S. Constitution nor federal civil rights laws by requiring students to use bathrooms corresponding to their biological sex as listed on their birth records.

All seven judges in the majority were appointed by Republican presidents, including six by former President Donald Trump, while the four dissenting judges were Democratic appointees.

Because other federal appellate courts have issued previous rulings allowing a student to chose to use bathrooms based on their gender identity, an appeal to the U.S. Supreme Court is likely.

In June 2021, the high court declined to hear arguments in the earlier appeals court ruling of a former high school student who challenged his Virginia school district’s bathroom policy.

Gavin Grimm was a sophomore at Gloucester County High School when he filed a federal lawsuit against the Gloucester County School District’s policy that prohibited students from using bathrooms and locker rooms that did not correspond with their “biological gender.”

The 4th U.S. Circuit Court of Appeals in Richmond in 2016 ruled in Grimm’s favor.

The Biden administration had urged the 11th Circuit to strike down the Florida school board’s policy. The White House had no immediate comment in regard to Friday’s ruling.

The suit was brought by Drew Adams, a transgender man who sued in 2017 after being barred from using the boys’ bathroom when he attended the Allen D. Nease High School in Ponte Vedra Beach, Fla.

“This is an aberrant ruling that contradicts the rulings of every other circuit to consider the question across the country,” Tara Borelli, a lawyer with Lambda Legal representing Adams, said in a statement. “We will be reviewing and evaluating this dangerous decision over the weekend.”

In the suit Reuters reported that Adams contended that the high school’s bathroom policy violated the Constitution’s Equal Protection Clause and Title IX, which bars sex discrimination in education.

Reuters notes:

Writing for the majority, Circuit Judge Barbara Lagoa disagreed, saying the school board had an important interest in protecting students’ privacy, and calling it “wrong” to suggest it relied on illegal stereotypes of transgender people.

The Trump appointee also said Title IX allows separate bathrooms based on biological sex, citing “the plain and ordinary meaning of ‘sex’ in 1972” when that law took effect.

She also warned that ruling for Adams could “transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities. Whether Title IX should be amended to equate ‘gender identity’ and ‘transgender status’ with ‘sex’ should be left to Congress — not the courts.”

Circuit Judge Jill Pryor, an appointee of Barack Obama, countered in dissent that by forcing Adams to use gender-neutral bathrooms, the St. Johns (County) School Board branded him with a “badge of inferiority” by deeming him “unfit” for equal protection.

“The Constitution and laws of the United States promise that no person will have to wear such a badge because of an immutable characteristic,” Pryor wrote. “The majority opinion breaks that promise.”

A legal analyst told the Washington Blade the 11th Circuit’s ruling is a victory for anti-LGBTQ activists and so-called family focused conservatives who continue to push anti-LGBTQ and anti-trans legislation, including trans bathroom ban measures across the country.

Last May, Oklahoma Senate Bill 615 passed the Oklahoma legislature and was quickly signed into law by Republican Gov. Kevin Stitt. The law requires all pre-K through 12th grade public schools and public charter schools to restrict the use of multiple occupancy restrooms and other facilities at school based on the sex listed on an individual’s original birth certificate.

Provisions in the language of the law requires schools to adopt disciplinary procedures to punish students who do not comply and allows parents and guardians to take legal action against any school that does not comply with the new law.

The American Civil Liberties Union, the ACLU of Oklahoma Foundation, Lambda Legal and pro-bono co-counsel Covington and Burling LLP filed a lawsuit this past September alleging that SB 615 violates the Equal Protection Clause of the 14th Amendment and Title IX of the Education Amendments of 1972, by discriminating on the basis of sex, gender identity, and trans status. 


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