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Good news on a transgender case, by Jeff Childers, FL attorney, in his daily newsletter today, 1/2/23:
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🧑‍⚖️ On Friday, the Eleventh Circuit entered a blockbuster 150-page decision in Adams v. St. John’s School Board, a case challenging a school district’s right to prohibit trans kids from using the opposite-sex bathroom. The case was unusual in that the final decision was entered by the entire 11th Circuit panel — every single judge — and reversed both the original district court decision as well as TWO intermediate appellate decisions by three-judge panels.

The Court held 7-5 that separating kids by biological sex is legal, constitutional and not discriminatory.

Plaintiff Drew Adams is a girl who acts like a boy. She dresses like a boy, she adopted a male name (Drew), her parents treat her like a boy, she takes hormones and got a de-boob job. Although her high school offered Drew gender-neutral bathrooms, Drew felt that the only way she could “fully” embrace manhood was to use the boy’s restrooms, just like real boys.

So she sued her school in the Middle District of Florida, Jacksonville Division, to change the bathroom policy and for money damages.

The Middle District court found in Drew’s favor, holding that the school district violated her constitutional rights, her rights under Title IX, and was blatantly discriminatory against trans students. The judge ordered the school to pay $1,000 in damages, to change the bathroom policy and, I assume, to pay Drew’s attorney’s fees. The school board appealed to the Eleventh Circuit, and a three-judge panel found 2-1 that the Middle District’s decision was correct.

That’s where things got interesting.

Another judge, not on the three-judge panel, stopped the order through a process called “withholding the mandate,” which signaled that review by the entire court was likely. At that point, the original three-judge panel withdrew their first decision, and then published a new, completely-rewritten decision again upholding the Middle District, but this time on a completely different legal theory that had never been raised by the parties in the lawsuit below.

As an officer of the court, I’ll only say that kind of thing is highly unusual, and leave it at that.

Obviously, it’s impossible to summarize the 150-page decision, which included a special concurrence and no fewer than four dissenting opinions. But I’ll cite two short parts from a section where the majority criticized the dissent at some length.

First, you’ll be encouraged that at least seven out of twelve judges on the Court found that Drew Adams is a biological girl, period. Her “gender identity” is completely different from whether under the law she is a girl or not. Boys bathrooms are for boys, not for girls who dress like boys:

In holding the bathroom policy unconstitutional, the district court never made a finding that Adams is a “biological boy,” as the dissent claims, which is the classification that the School Board uses to restrict access to the male bathrooms and the classification that Adams is challenging. The district court looked to Adams’s gender identity—not Adams’s biological sex—for purposes of evaluating the bathroom policy. And even the dissent acknowledges, as it must, that gender identity is different from biological sex.
Next, the Court cited the Frontiero case, in which the U.S. Supreme Court said that “sex … is an immutable characteristic determined solely by the accident of birth:”

Thus, despite the dissent’s suggestion, the district court did not make a finding equating gender identity as akin to biological sex. Nor could the district court have made such a finding that would have legal significance. To do so would refute the Supreme Court’s longstanding recognition that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson (1973); see also Immutable, Oxford English Dictionary (2d ed. 1989) (“Not mutable; not subject to or susceptible of change; unchangeable, unalterable, changeless.”).
In saying sex is immutable, they meant it cannot be changed. The majority seemed intrigued by the concept of “gender fluidity,” which seems to imply something more “mutable” than “immutable.” In saying that sex is determined SOLELY by birth, they meant you can’t change it next Wednesday based on how you are feeling at the moment, or for any other reason. The Court explained, “There is simply no alternative definition of ‘sex’ for transgender persons as compared to non transgender persons.”

The Court wrote that biological differences between the sexes was the fundamental reason for constitutional and Title IX protections, holding “To fail to acknowledge even our most basic biological differences . . . risks making the guarantee of equal protection superficial, and so disserving it.”

In what should be, but isn’t, entirely uncontroversial, the Court also recognized that non-trans kids have protectable privacy rights in the bathroom, explaining that “the protection of individual privacy will occasionally require some segregation between the sexes is beyond doubt.” The majority rejected the lower court’s argument that Drew didn’t violate anyone’s privacy because she just used a private stall and then left the bathroom. But the Court disagreed, explaining the boy’s bathroom also has undivided urinals, and students change clothes in there.

In other words, ALL students’ privacy begins at the bathroom door.

Finally, in what will probably become the most-cited line from this decision, the Court explained that having separate policies based on biological sex does not discriminate against trans people: “A policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender status.”

A few minor but noteworthy points:

1) In the entire opinion, the majority never used a pronoun for Drew except when quoting other people. It was odd, but what can you do these days? Anyway, and most significantly, the majority never used Drew’s “preferred pronoun.”

2) Instead of using the fake disclaimer “sex assigned at birth,” the majority found that “Adams’s biological sex — sex based on chromosomal structure and anatomy at birth — is female.” Boom.

3) The Court recited that out of 40,000 St. John’s county students, only 14 are “trans.” I can’t remember seeing any stats like that before. Those kinds of figures would be helpful.

4) The Eleventh Circuit sits over Florida, Georgia, and Alabama, and the new holding binds those states. Adams’ lawyers — and probably whoever is financing the trans movement — are now weighing whether to appeal to the US Supreme Court, which could decline to hear the case until there is a split among the circuits.

Progress.”