Eleventh Circuit Rejects Transgender Student’s Challenge to Bathroom Policy

On December 30, the United States Court of Appeals for the Eleventh Circuit handed down a major opinion in in Adams v. School Board of St. Johns County, Florida. The court ruled 7-4 against a statutory and constitutional challenge of a transgender student to a district policy requiring students to use bathrooms corresponding to their biological sex.  Given the countervailing decision of the Fourth Circuit in G.G. v. Gloucester Countythere is now a conflict in the circuits that could prompt a Supreme Court review. The Court expressly stated that it was not ruling on this question in its 2020 decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020).

Adams brought the challenge under the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq.

Judge Barbara Lagoa wrote the majority opinion, which was joined by Chief Judge Bill Pryor and Judges Newsom, Branch, Grant, Luck, and Brasher.  Judges Wilson, Jordan, Rosenbaum, and Jill Pryor each wrote dissenting opinions.

The court reversed the decision of the United States District Court for the Middle District of Florida. Judge Timothy Corrigan enjoined the policy and awarded $1,000 in compensation to Adams. Corrigan’s decision was particularly notable in his interpretation of the word “sex” under Title IX, which the Eleventh Circuit ultimately rejected (as discussed below).

What happened next was interesting. A divided appellate panel affirmed the district court over a dissent from Chief Judge Pryor. Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292 (11th Cir. 2020). The Court then explained:

“After a member of this Court withheld the mandate, the panel majority sua sponte withdrew its initial opinion and issued a revised opinion, again affirming the district court over a revised dissent but on grounds that were neither substantively discussed in the initial panel opinion nor substantively made by any party before the district court or this Court.2 Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1303–04 (11th Cir. 2021); id. at 1321 (Pryor, C.J., dissenting). We then granted the School Board’s petition for rehearing en banc and vacated the panel’s revised opinion. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 9 F.4th 1369, 1372 (11th Cir. 2021).”

Judge Lagoa begins the majority opinion by describing the dispute as involving “the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex.” In analyzing the “straightforward” claims, Lagoa laid out the facts and holding:

“Adams, who identifies as a male, argues that the policy violates Adams’s rights because, as a transgender student, Adams cannot use the bathroom that corresponds to the sex with which Adams identifies. Which is to say, Adams argues that by facially discriminating between the two sexes, the School Board’s bathroom policy also necessarily discriminates against transgender students. We disagree with Adams’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students.”

On the Equal Protection question, the court ruled that intermediate scrutiny applies to the case and that the district needs only show that the policy (1) advances an important governmental objective and (2) is substantially related to that objective. Miss. Univ. for Women, 458 U.S. at 724. The court found both criteria satisfied because the policy

“is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur.”

On the Title IX issue, the court held that the statute allows schools to provide separate bathrooms on the basis of biological sex.

“That is exactly what the School Board has done in this case; it has provided separate bathrooms for each of the biological sexes. And to accommodate transgender students, the School Board has provided single-stall, sex-neutral bathrooms, which Title IX neither requires nor prohibits. Nothing about this bathroom policy violates Title IX. Moreover, under the Spending Clause’s clear-statement rule, the term “sex,” as used within Title IX, must unambiguously mean something other than biological sex—which it does not—in order to conclude that the School Board violated Title IX. The district court’s contrary conclusion is not supported by the plain and ordinary meaning of the word “sex” and provides ample support for subsequent litigants to 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.”

Judge Lagoa went further in a separate concurrence:

Affirming the district court’s order and adopting Adams’s definition of “sex” under Title IX to include “gender identity” or “transgender status” would have had repercussions far beyond the bathroom door. There simply is no limiting principle to cabin that definition of “sex” to the regulatory carve-out for bathrooms under Title IX, as opposed to the regulatory carve-out for sports or, for that matter, to the statutory and regulatory carve-outs for living facilities, showers, and locker rooms. And a definition of “sex” beyond “biological sex” would not only cut against the vast weight of drafting-era dictionary definitions and the Spending Clause’s clear-statement rule but would also force female student athletes “to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female.” Id. at 1779–80. Such a proposition—i.e., commingling both biological sexes in the realm of female athletics—would “threaten[] to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.” Id. at 1779.

Judge Jordan takes issue with the analysis and, while agreeing that intermediate scrutiny applies, finds a clear violation of the Constitution, noting an inherent contradiction in the policy:

“The School Board did not allow Drew Adams, a transgender student, to use the boys’ bathroom. As explained below, however, the School Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with documents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience. And when intermediate scrutiny applies, administrative convenience is an insufficient justification for a gender-based classification.”

Judge Wilson attacked the medical claims of the district in a separate dissent and suggests that it is based on the indeterminacy of gender at birth:

“Underlying this sex-assigned-at-matriculation bathroom policy, however, is the presumption that biological sex is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended documentation because a student’s sex does not change. This presumption is both medically and scientifically flawed. After considering a more scientific and medical perspective on biological sex, it is clear that the bathroom policy’s refusal to accept updated medical documentation is discriminatory on the basis of sex.”

In her dissent, Judge Jill Pryor rejected the accommodation of a gender neutral bathroom:

Each time teenager Andrew Adams needed to use the bathroom at his school, Allen D. Nease High School, he was forced to endure a stigmatizing and humiliating walk of shame—past the boys’ bathrooms and into a single-stall “gender neutral” bathroom. The experience left him feeling unworthy, like “something that needs to be put away.” The reason he was prevented from using the boys’ bathroom like other boys? He is a transgender boy.

To start, the majority opinion simply declares—without any basis—that a person’s “biological sex” is comprised solely of chromosomal structure and birth-assigned sex. So, the majority opinion concludes, a person’s gender identity has no bearing on this case about equal protection for a transgender boy. The majority opinion does so in disregard of the record evidence—evidence the majority does not contest—which demonstrates that gender identity is an immutable, biological component of a person’s sex.”

It is a fascinating set of opinions (which also includes a dissent from Judge Rosenbaum). With the conflict with the Fourth Circuit, it would make for an ideal basis for the Court to consider the constitutional and statutory issues by granting a petition for writ of certiorari.

The accommodation of the gender neutral bathroom makes this policy particularly interesting for review. While some would argue that this amounts to a gender version of “separation but equal,” the district sought a middle position on the controversy. However, much turns on the definition of “sex” under Title IX.

Adams and others relied upon the Supreme Court’s recent decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). That case involved employment discrimination under Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq, and Justice Neil Gorsuch wrote in the 6-3 decision that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating based on sex. (Justices Thomas, Alito, and Kavanaugh dissented).

However, the Court expressly stated that it was not ruling on this issue:

“Under Title VII, . . . we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”

The Biden Administration, however, has issued a Notice of Interpretation through the U.S. Department of Education’s Office for Civil Rights that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.

Here is the opinion: Adams v. School Board of St. Johns County, Florida


102 thoughts on “Eleventh Circuit Rejects Transgender Student’s Challenge to Bathroom Policy”

  1. “Adams, who identifies as a male…”

    Immutable traits: or bit of the truth table
    Q: An adult human male may be an adult human man but based upon the immutable traits of an ‘adult human male’ not all ‘adult human men’ may be ‘adult human males’

    A: True. It’s important to recognize that the terms “male” and “man” have different meanings and connotations, and are not directly interchangeable.

    Q: It’s important to recognize that the terms “male” and “man” have different meanings and connotations, and are not directly interchangeable and that we should be diligent and be respectful not to conflate the two.

    A: True. It’s important to recognize that the terms “male” and “man” have different meanings and connotations, and should not be used as directly interchangeable.

    Adam is not a ‘Human Male’ with the ‘immutable traits’ of a ‘Human Male’, but rather, Adam is a ‘human man’ with the immutable traits of a ‘Human Female’

    1. A male who presents as a female is by definition NOT presenting “immutable” traits.

      Immutable: unchangeable.

      I support peoples freedom to make choices that do not harm others, but you undermine your own arguments when you try to claim that something that is a choice is actually not a choice but a personal attribute that can not be changed.

      I can change my hair, I can change my dress, I can have surgery to alter my body. These are all choices. They are not immutable traits.

      I can not change my DNA. That is immutable.

      Word games do not change facts, and deceipt in argument undermines credibility

      O, what a tangled web we weave when first we practise to deceive!
      Walter Scott

      1. The physical characteristics that are commonly used to distinguish males and females in humans are not interchangeable. Males and females of the species Homo sapiens (human beings) typically have different reproductive anatomy and other physical characteristics that are specific to their sex. These characteristics include:


        Vulva: The vulva is the external female genitalia. It includes the mons pubis (the fatty area over the pubic bone), the labia majora (the outer “lips” surrounding the vaginal opening), the labia minora (the inner “lips” surrounding the clitoris), the clitoris (a small, sensitive organ located at the front of the vulva), and the vaginal opening.
        Vagina: The vagina is a muscular tube that connects the uterus to the outside of the body. It is the birth canal through which a baby is born and is also used for sexual intercourse.
        Uterus: The uterus, also known as the womb, is a pear-shaped organ located in the pelvis. It is where a fertilized egg implants and grows into a fetus during pregnancy.
        Ovaries: The ovaries are a pair of small, almond-shaped organs located on either side of the uterus. They produce eggs (ova) and hormones, such as estrogen and progesterone.
        Typically higher levels of estrogen: Estrogen is a hormone that plays a role in the development of female secondary sexual characteristics and the regulation of the menstrual cycle.
        Breast development (may occur during puberty): Female secondary sexual characteristics often include the development of breasts during puberty.
        Ability to bear children: Females are capable of becoming pregnant and giving birth to offspring.
        Menstruation (the regular shedding of the lining of the uterus, which occurs in females who are able to bear children): Menstruation is a characteristic of the female reproductive system that occurs in females who are able to bear children.

        Penis: The penis is a male reproductive organ and a part of the urinary system. It is used for sexual intercourse and for urination (the release of urine from the body).
        Testicles: The testicles, also known as the testes, are a pair of male reproductive organs located in the scrotum. They produce sperm and hormones, such as testosterone.
        Typically higher levels of testosterone: Testosterone is a hormone that plays a role in the development of male secondary sexual characteristics and the production of sperm.
        Facial and body hair (may develop during puberty): Male secondary sexual characteristics often include the development of facial and body hair during puberty.
        Deepening of the voice (may occur during puberty): The larynx (voice box) grows during puberty, resulting in a deepening of the voice in males.

        Physical characteristics that are immutable include reproductive anatomy, chromosomes, and hormone production. These characteristics are determined at or before birth and do not change throughout a person’s lifetime.

        1. For the most part I am not interested in this debate.

          It is wrong to sexualize kids.
          It is wrong to violate the hypocratic oath.
          There are specific instances in which peoples choices regarding their “gender” do have potentially harmful effects on others.

          But to a very large extent if you are an adult and want to make choices I think are stupid that impact only you – go ahead.

          “Physical characteristics that are immutable include reproductive anatomy,”
          False. While we can not at this time replicate functional reproductive anatomy of the opposite sex, we can alter reproductive anatomy – it is NOT immutable.

          “chromosomes” are immutable.
          “and hormone production.”
          We can stop the production of sex hormones, so that is not immutable.

          “These characteristics are determined at or before birth”

          “do not change throughout a person’s lifetime.” Correct, but 2 of the 3 you noted can be changed. Immutable means can not be changed.
          Your stuck with the genes you were born with. Your not stuck with the anatomy or hormones.

          I can recomend that others avoid unwise choices – but I do not have the right to prevent someone else from doing something that only harms themselves – assuming we are talking about adults.

          1. “Physical characteristics that are immutable include reproductive anatomy. While we can alter reproductive anatomy through artificial means, these alterations do not fully replicate the reproductive anatomy of the opposite sex and do not achieve the immutable characteristics of the opposite sex.”

            1. If you can change it – it is not immutable.
              The fact you can not today transform fully functional male reproductive organs into fully functional female ones does not make reproductive organs immutable.

              To a large extent I think we share similar values. But I am not going to buy false arguments just because they favor my position.

              Today, genetics remains immutable. Probably that will always be so. But I do not know for certain what the future holds.

              But reproductive organs and hormones are not immutable. There are merely complications – sometimes potentially dangerous ones to changing them.

              Adults are free to make choices regarding themselves whether I think those choices are wise or not.

              1. It is important to note that certain aspects of reproductive anatomy are closely related to the production of hormones, which can affect a person’s physical characteristics. For example, the gonads (testes in males and ovaries in females) produce hormones that play a role in the development of secondary sex characteristics, such as facial hair in males and breast development in females. These hormones are produced in response to signaling from the pituitary gland and the hypothalamus, which are located in the brain.

                While it is possible to alter hormone production through medical interventions such as hormone therapy, it is not possible to change a person’s immutable characteristics, such as their genetic makeup or bone structure, through these means. Hormone therapy can change the levels of hormones in the body, but it cannot change the underlying immutable characteristics that determine a person’s reproductive anatomy.

                1. It is not possible to change genetic makeup – today.

                  It is not possible to undo some of the changed hormones make to you body during puberty.
                  Which is one of the arguments made by trans teens to alter their hormones before puberty.

                  Regardless hormones are not immutable.

                  I am not looking for a holy war with you.

                  But if you overreach you undermine the parts of your argument that are correct.

                  I would further note that we can not change our genes today. Maybe we never will be able to.
                  Or maybe not. We do not know what the future may bring.

                  Many of the things you claim are immutable today – that are not.
                  Were immutable a century ago.

                  Again, I do nto care what you or anyone else does to themselves. until you cause direct harm to others.

                  Couple that with teens and children are not adults, and are not inherently free to do whatever they please.
                  And for the most part we are in agreement.

                  1. The genetic makeup of a person is the set of genes that they inherited from their parents at the moment of conception. This includes the genes that influence the structure and function of specialized organs such as the gonads, the pituitary gland, the adrenal glands, and the thyroid gland. These organs are responsible for producing and secreting hormones and have different structures and functions in males and females. The genetic makeup of a person is fixed from the moment of conception and cannot be changed. However, the production and secretion of hormones produced by these organs can be influenced by a variety of factors, such as diet, stress, and environmental exposures. Despite these influences, the basic structure and function of these organs is determined by genetics and cannot be changed.
                    A man cannot be a woman.

                    1. I do not disagree with this.

                      But you previously identified 3 things as immutable.
                      Only one of those is currently immutable.

                      The other two can be changed.
                      While they can not be changed perfectly from a man to a woman or visa versa, they can be changed from what they are to something that looks like the opposite gender.

                      That means they are not immutable.

                      I am not debating labels with you.
                      I do not disagree with you on what a Man is or what a Woman is.

                      But I am rejecting your claim that sex organs and hormones are immutable.
                      Immutable does not mean – they can not be changed to whatever you want.
                      It means they can not be changed at all.

                      I am not going to allow those on the left to make inaccurate arguments.
                      I hold those on the right to the same standards.

                    2. While they can not be changed perfectly from a man to a woman or visa versa, they can be changed from what they are to something that looks like the opposite gender.

                      That means they are not immutable.
                      labels have meanings . . .
                      “they” as you refer to is but a thread of the whole cloth.
                      You argue that while it is not possible to change a person completely from one gender to another, it is possible to alter certain aspects of their physical appearance and characteristics to look like the opposite gender. This implies that some biological traits, such as physical appearance and characteristics, may be mutable to some extent through medical or surgical means. However, it is important to note that this does not change a person’s underlying BIOLOGY or genetics, and many biological traits, such as DNA and inherited physical characteristics, are considered to be immutable and are not changeable. Therefore, the first statement suggests that while some aspects of a person’s biological traits may be mutable, others may be immutable..

                    3. You said genetics is immutable – today and for the foreseable future that is true.

                      The other two things you noted are not immutable.
                      Absolutely they are normally set by genetics.
                      BTW I did not imply these were not immutable.
                      I SAID flatly they are not immutable.

                    4. If you are an Adult Human Male and want to become a woman that’s your choice, but you are not an Adult Human Female, you will always be an Adult Human Male.

                      In summary, adult human females have immutable biological characteristics that are unique to them, such as the presence of two X chromosomes, the ability to produce eggs, and the presence of the ovaries as the primary reproductive organ, which produce eggs and the hormones estrogen and progesterone. These characteristics are typically used to differentiate females from males and are based on the presence of certain reproductive anatomy and hormones. On the other hand, adult human males have immutable biological characteristics that are unique to them, such as the presence of a Y chromosome, the ability to produce sperm, and the presence of the testes as the primary reproductive organ, which produce sperm and the hormone testosterone. These characteristics are typically used to differentiate males from females and are based on the presence of certain reproductive anatomy and hormones.

                    5. You keep confusing characteristics that are actually immutable such as genes and those that are not such as ovaries or sperm production.

                      The Fact that today a xx female can not produce sperm, is not the same as having ovaries and producing eggs being immutable.

                    6. The distinct roles and functions of male and female reproductive systems, as well as the difference in the process of fertilization, are immutable, meaning that they cannot be altered by external means and are a fundamental aspect of human reproduction that is not subject to change.

                    7. That remains FALSE.

                      The fact that you can not transform a Dog into a Cat does no make a Dogs tail immutable.
                      You can cut the tail off – it is then gone. it is therefore not immutable.

                      You can not change a persons Genes today – they are immutable.

                      You can change their hormones and alter there sex organs – they are not immutable.

                      You are correct that a fully reproductively functioning male can not be transformed into a fully reproductively functioning female.
                      But that is not what immutable means.

                    8. Words have very specific meanings:
                      Never let yourself be swayed by appeals to emotion, politics or prejudice.

                      Female: of or pertaining to the sex which produces young, not male
                      Male: pertaining to the sex that procreates young, as distingushed from the female.
                      Man: An Adult Male of the Human Race
                      Woman: An Adult Female of the Human Race

                      Immutable: Not subject or susceptible to CHANGE:
                      Change: To give a completely different form or appearance to; transform
                      Transform: To CHANGE the nature, function, or condition of:

                      Correct that a fully reproductively functioning male can not be transformed or changed into a fully reproductively functioning female.

                      A fully reproductively functioning male cannot become a woman.
                      A fully reproductively functioning female cannot become a man.

  2. “Girls will be boys, and boys will be girls
    It’s a mixed up, muddled up, shook up world
    Except for Lola
    Lo lo lo lo Lola”

    (Lyrics to Lola, copyright: the Kinks)

  3. wouldn’t it also be discrimination if a person who identifies as a cop, doctor, lawyer, judge etc, was arrested for impersonation of that occupation? We’ve all seen that the slippery slope is real and dangerous.

  4. At our establishment, we recognize that everyone has different needs and concerns when it comes to privacy, and we are committed to creating a safe and welcoming environment for all travelers. In order to meet the needs of all travelers, we offer male, female, and unisex changing rooms, as well as private areas. Each of these changing rooms provides similar amenities and facilities, and no one area is more or less significant than the others. However, we understand that some travelers may have specific privacy concerns, and we encourage all travelers to use the changing room that makes them feel most comfortable and safe. We respect the privacy and boundaries of all individuals and are committed to providing a range of options to meet the needs of all travelers. If any traveler experiences a breach of their privacy concerns, we encourage them to report it to our staff so that we can take steps to address the issue and prevent it from happening again in the future.

  5. Why can’t we just have unisex bathrooms with locking, private doors? Use whichever one you want. Is that so hard?

    1. Quit making sense…..you will kill all hope for future left wing politicians, judges and of course, the budget increases and additonal personel to enforce this everywhere…….

    2. No. There are two sexes. Male and female. Give them separate bathrooms. Allow them privacy and dignity.

    3. We can, and that is likely what we will do as quickly as feasable in most places.

      Lots of places accross the country commercial fascilities have two restrooms one male and one female.
      Where those restrooms are a toilet and a sink and little else, just getting rid of the men/women signs works.

      But many places have ganged fascilities to handle more people, and converting these is harder and more expensive.
      But private businesses will likely do so relatively quickly just to get out of the line of fire.

      But public buildings are more of a problem. Historic buildings are a problem,

      And finally High Schools are just not a resolveable problem. We can work out bathrooms – with enough money.
      Gym Locker Rooms are much more difficult.

      Many private fascilities will adopt self contained multiple single restrooms – because these also appeal to families with small kids.
      Who are a far more important demographic than Transgendered.

      A mother or father with a couple of young kids wants a bathroom that will fit a couple of kids and a parent, with a baby changing fold down,
      and a lock and privacy, so that kids are safe.
      Generally any restroom that is single person and handicapped accessible will suit a family.

      That is actually important – because the country is not going to spend a fortune rebuilding all public restrooms just to suit trans people.

    1. I would disagree…..the end game is power. The ramifications though are insane. Transgender bathrooms everywhere…..airplanes, naval vessels, any cargo ship enterning a US port, perhaps any aircraft, regardless of country entering, all gov’t buildings…virtually endless as it continues with showers, hotels, AirBnB’s, fast food outlets, truck stops and gas stations, stores of all types actually). But that is OKAY if you are left of center and don’t pay taxes or an aspiring or existing politician. May I suggest a back to fundamentals approach….instead of laying another brick on the road to never ending tyranny?

      1. It’s just another stage towards the destruction of this society. Have you noticed society going more downhill lately? They have been working on it for decades. It’s another version of a certain class of people they sterilized and killed in WWII (perverts, anyone deemed a retard); it’s just that they flipped the script under the guise of “inclusivity.” Hundreds and hundreds of psychs involved in WWII. Funny how all our worst tragedies appear to be involving the “medical” field.

        Brock Chisholm, psychiatrist, co-founder of the World Federation for Mental Health and first director of WHO:
        “To achieve world government, it is necessary to remove from the minds of men, their individualism, loyalty to family traditions, national patriotism and religious dogmas.” 1963

        “The family is now one of the major obstacles to improved mental health, and hence should be weakened, if possible, so as to free individuals and especially children from the coercion of family life.” International Congress on Mental Health, London, 1948

        “Every child in America entering school at the age of five is insane because he comes to school with certain allegiances to our founding fathers, toward our elected officials, toward his parents, toward a belief in a supernatural being, and toward the sovereignty of this nation as a separate entity. It’s up to you as teachers to make all these sick children well – by creating the international child of the future”
        Dr. Chester M. Pierce, Psychiatrist, address to the Childhood International Education Seminar, 1973

        cchr.int cchr.org psychsearch.net

        1. Yikes. Guess I’m one of the insane ones.
          (Is that where Hillary got her “it takes a village” idea?)

    2. There is a giant gulf between idiots doing something stupid that WILL result in more pedophilia and rape,
      and actually intending to increase pedophilia and rape.

      I am certain that pedo’s will and probably already are trying to take advantage of transgenderism.
      Both to increase oportunities and to try to justify pedophilia is somehow moral.

      The fact that one group is trying to use another, does not mean that there goals are the same.

      I do not give a schiff if you are an adult and think you are transgendered. So long as your choices do not create obligations or burdens for others.

      But there are specific places where trangenderism does interfere with others.

      Most of today’s “bathroom” issues will be resolved as we move to more unisex and family bathrooms.
      But I do not se an easy resolution of High School Restrooms and Gym Locker Rooms.

      Separately anywhere were women compete physically and separately from men creates a conflict with MTF Trans who will always have the same advantage men do.

      Either we eliminate women’s sports or we limit them to XX women.

      The rest ? Do whatever you want. It is your life, and your body.

      Of course when you come looking for a job – I am going to look at you the same as the person with dozens of peircings or covered in tattoos.
      “Is this someone I want working for me ?”
      The answer is not obviously no, but it still has a negative impact.

  6. Show me the last time a transitioning boy died of ovarian cancer…..never…yet his hearts desire steals funding from women’s health…..for hormone home enough to not kill himself….really? That’s where we are : we don’t want these fragile people to kill themselves over not being able to be what they want to be…..yet….the only category of people we don’t want to kill themselves…for failure are the transitioners….why are these delicate freaks any more worthy of protection from suicide than the college student being weeded out and rendered just another stat of a fifty percent who didn’t make it? What makes these losers any more suicidal than any other failure? What’s the math on other failures? Certainly they don’t all kill themselves. Why do these wanna be opposite sex kill themselves ALLEGDLY….more….or do they? Even if they do more frequently commit suicide …should all of society change to Cater to them…..whilst are already high suicide rate? That is why do we bend over backwards so they don’t kill themselves….but we don’t bend over backwards so others don’t kill themselves? To me what’s detrimental to my kid….is the opppressiveness of uwf….but he’s hoping to take you to court about “satisfactory”- he’s not going to claim to kill himself…..we have a true mental health problem……When the cure or remedy for a disease or problem…..involves alll off society changing so the sufferers suffers no more. The cure is insane. Like one guy out it…it will be a hate crime when other people say they don’t hear the voices! If the progression can’t see it’s insane to punish the all….for the insanity of the few…we don’t need that profession. Lajes86 545499a. It’s Pentagon level to look into how this impacts national security. They have to care about who they can make viable to fight. Probably not a 200 pound lesbian. Fighting for a 100 pound favorite rights. The do e has to cut a sweet line….although i d say they want the right to be freaks…go for for it!

    1. Of you want the right Dr freaks to exist….then volunteer for the army to protect that right…..but what you are doing is saying some one else go fight for our right and we are going to make everyone else believe we are cool….go to Ukraine and fight for it cool guy…because that’s the war. Orthodox vs not. You so proud to be unorthodox….prove it…take your unorthodox tats…like friendly and die for it….you won’t and around my is sacrificing his people because your college failed to teach…history! And put in was promised things…like no NATO at ukraine. This bills cass was initiated by Joe biden…And the whole world knows that. And by doing so he risked over 30 years of work by our Corp to cultivate peace and prosperity. Decades of our work and lives. Covered and not covered. But he doesn’t know what we together have covered….And we can take home down but we don’t because the dollar….but he fixed much more that….go…..at indication crack Biden ….go
      Make america great again….scram

  7. Judge Jill Pryor has forgotten what her job entails by getting down to the emotional distress possibility experienced by one person. Puberty and adolescence is uncomfortable for many students, both male & female, but it’s not the school’s fault or duty to first care about a student’s feelings; it’s education.
    If Drew is too delicate to use his very own private bathroom, he’s not cut out for public school, especially high school.

    1. It’s interesting they judge is sooo considerate of one person’s “feelings” but cares nothing of the others who would have equally valid feelings with someone from the opposite sex in their bathroom

  8. Any society that would allow a stranger with a penis into a bathroom full of little or not so little girls is sick, indeed. Any judge who would do likewise is unfit for office. A political party that promotes both is the Democrats. Draw your own conclusions.

    1. The day is approaching when these deviant trans-fascists will push things too far… and then they will be fleeing in terror, hiding in fear for their lives, as they are openly beaten and flogged for inflicting mutilation and mental-illness upon innocent children.

  9. Brain Scanning Technology: When asked to think of something ‘sad’ females generate more activity in their emotional brains then males. This suggest that females may have stronger emotional reactions to self-generated thoughts and ideas then males.. [Mapping The Mind- Rita Carter] e.g. “Do these pants make my rear look bigger?” Unless you desire to test the biological difference between males and female, as a male, answer the question with careful thought. “Remember I’m pullin’ for ya–we’re all in this together.” ― Red Green

    1. Nearly every non-genetic difference between XX women and XY men, distributes along a bell curve.

      While the appogees of the curves are difference for XY males and XX females, the curves overlap.

      Thus there will always be a few women who are more masculine in some trait than a few men who are more feminine.

      There are plenty of straight men who do not wish to change their sex, who are more feminine that a similar group of straight women who do not wish to change their sex.

      Put simply identifying some attribute like the brains emotional response does not provide you with an authoritative means of identifying Trans men or trans women.

  10. This is a brilliant opinion because it clearly distinguishes between a person’s sex and that person’s attitude towards his or her sex. It argues that it is permissible under the EPC and Title IX to draw lines in these circumstances based on sex. Once that is established, it concludes that the person’s attitude towards his or her sex is irrelevant from a legal standpoint.

    It also clearly defines sex as immutable in the eyes of the law. No matter how much hormone treatment or cosmetic surgery is done, sex cannot be altered: a man cannot bear a child and a woman cannot fertilise an egg.

    1. We have radically different legal standards for discrimination against clearly immutable traits – race, physical disability, biological sex, and discrimination against characteristics that are at best subjective.

      The law should make the same distinction. We should have high bars for discrimination by race and biological sex, while more lattitude where it is not clear the attribute is immutable.

    2. From a legal standpoint, it was irrelevant in this context whether Adams was a Mormon or a Scientologist, Black or White, or Halo cosplayer or Star Wars cosplayer.

      It was a classification based on sex, which is subject to intermediate scrutiny under controlling precedent. The policy satisfies that level of scrutiny.

  11. >In her dissent, Judge Jill Pryor rejected the accommodation of a gender neutral bathroom:

    >> To start, the majority opinion simply declares—without any basis—that a person’s “biological sex” is comprised solely of chromosomal structure and birth-assigned sex. So, the majority opinion concludes, a person’s gender identity has no bearing on this case about equal protection for a transgender boy. The majority opinion does so in disregard of the record evidence—evidence the majority does not contest—which demonstrates that gender identity is an immutable, biological component of a person’s sex.

    I looked up the the opinion, but J. Pryor does not cite to any authority for the last sentence quoted here. So we’d have to look at the record to dig it up.

    Until about 5 years ago, “sex” and “biological sex” referred to one’s chromosomal structure and reproductive anatomy — male or female. (That there are mutational structures, both chromosomal and anatomical, is a separate issue.) I think the terms still so refer. “Sex” and “biological sex” do not include what the person **thinks** he or she is. Under J. Pryor’s terminological scheme, what **is** the term for the property delineated by chromosomal and reproductive structure? Apparently, there is no such term. Or that property apparently no longer has any significance; it is an artifact.

    Ultimately, it would seem that J. Pryor is playing semantics and falling for American psychobabble — that a person can “be” the opposite sex simply by deeming himself or herself to be so.

    1. Most children whose gender identity is at some point at odds with their sex desist over time. Many of them turn out to be gay.

      We are now seeing increasing numbers of “detransitioners,” some of whom are bringing lawsuits against those who promoted their rapid transition.

      It is simply absurd to claim that gender identity is an immutable biological trait.

      1. You meant “mutable change”, right? Given the current situation, “gender identity” has nothing to do with biology.

        1. No, I meant to say that it is absurd to claim that gender identity is an immutable biological trait, which is what the dissent says. Sex is an immutable biological trait; gender identity is not.

    2. To my knowledge there is no objective means of identifying a person as
      gay, or straight.
      MTF or FTM trans
      or anything else the left calls “gender”

      Conversely any person can be idenfied as male or female by chromosomes.

      I absolutely favor individual liberty. Whether Gay or trans or … are choices or not, so long as they do not collide with the rights of others, I do not get a schiff how you identify.

      But there are a few places where “gender” matters. competitive sports and HS lockerrooms.
      There are no easy solutions to those problems that do not involve infringement on the rights of others. In those instances what is subjective MUST fail to what is objective.

      1. Bostock went a long way to creating this confusion.

        In Bostock, the Court accepted that “because of sex” meant “because of biological sex.” It did not mean “because of homosexual orientation or transgender identity.”

        It then addressed itself to what it meant to “discriminate” against someone because of biological sex in the employment context, which is what Title VII deals with.

        Here is where Gorsuch played semantic games, which were called out by Alito in his dissent.

        Gorsuch argued that discriminating against a gay or transgender person because they were gay or transgender necessarily involved discrimination because of biological sex. The reason for this in the case of a transgender situation is that a person who identifies as a man would be fired if she was a biological woman but would not be fired if he was a biological man. The trait in common between the two people is identifying as a man, while the difference is biological sex. Hence, Gorsuch concluded that this involved discrimination on the basis of biological sex.

        Alito in his dissent said this was sophistic, because the characteristic that was being discriminated against was not biological sex but transgender identity. A man who identified as a woman would be fired for the same reason as a woman who identified as a man; and a woman who identified as a woman could not be fired just as a man who identified as a man could not be fired. What mattered was whether the person identified as his or her sex or against it, not what sex he or she was. When both men and women are equally susceptible to being fired for identifying as the opposite sex, it is a stretch at best to say that they are being discriminated against because of their sex and not because of the way in which they identify.

        But regardless of what you think of Gorsuch’s argument in Bostock, the case here is positioned differently, because the school district here was relying on an express exception to the prohibition against discrimination because of sex. That exception, in Title IX and regulations under it, expressly permits discrimination on the basis of sex, to maintain separate bathrooms, locker rooms, living spaces and sports teams. Remember, Gorsuch in Bostock accepted that “because of sex” meant “because of biological sex” and then played his semantic games to say that discrimination on the basis of transgender identity entailed discrimination because of biological sex. Here, it is clear that there is discrimination based on biological sex; but also that this discrimination is expressly permitted because of the exception. The plaintiff is not arguing that the exception is unconstitutional. Accordingly, in this case the 11th Circuit held that discrimination because of biological sex in this context is explicitly permitted by a statute whose constitutionality is not being challenged, so the plaintiff’s gender identity is entirely irrelevant.

        The plaintiff could argue that she is being specially discriminated against as an individual because of her biological sex, in that if she had been a boy identifying as a boy he would have been entitled to use the boys’ bathroom. But I don’t see how this argument could succeed, since the exception explicitly permits discrimination because of biological sex in this context.

        In my view, the Supreme Court is likely to decide here that this is permissible discrimination on the basis of biological sex by virtue of the exception in the statute. It can do so without affecting Bostock, which it held involved impermissible discrimination because of biological sex on the basis of Gorsuch’s semantic games. I don’t think the Court will break new ground to hold for the first time that discrimination “because of sex” means discrimination “because of transgender identity.”

        1. I often avoid these argumments for the simple reason that none of this is governments business.

          If you want me to picket of boycott employers of discriminate against blacks, jews, gays, ….

          I will do so.

          But if you want to use force to restrict private discrimination – even based on immutable characteristics – you are outside the legitimate scope of government.

          Jim Crow laws were wrong.
          The portions of the equal rights act that apply to private actors are no better even though the Feel right.
          There is no difference between government saying you must discriminate privately, and its saying you can’t.

          Gorsuch is nearly or completely right about how we should behave.
          But the courts went off the rails regarding what the law can and con not force, long ago.

          I am not inclined to criticize specs in Gorsuch’s eyes, when the entire court has a board in their eye.

            1. You seem to think that Government is your parent, and should wash your mouth out with soap when you say something wrong.

        2. The exception still requires justification to pass intermediate scrutiny under the Equal Protection Clause. Judge Jordan’s critique is hard to refute. If a transgender student just like Drew can use the boys’ bathroom if the student enrolls after transition with documents listing him as male, then how can the Board’s policy be justified by anything other than administrative convenience?

          There is no difference between Drew and this hypothetical individual other than the time at which the transition and enrollment occurs. How does distinguishing between these two situations (1) advance an important governmental objective; and (2) substantially relate to that objective?

          The privacy concerns of other students do not differ.

    1. This post, which appears to be an attempt to sex up this conversation, is so narrow-sighted as to hardly engender a response.

  12. Some notes:

    – there is no doubt that the policy in question discriminations between persons. The question was whether the discrimination met the appropriate level of scrutiny.
    – The majority concoluded, and I agree, that the policy discriminates on the basis of biological sex. Under controlling precedent, this classification is sub ject to intermediate scrutiny. Due to the long historical pedigree of sex segregated facilities, as well as students in school having narrower constitutional protections in school, this policy satisfies equal protection.
    – Adams and the dissent claim that this is actually discrimination on the basis of transgender status. This fails, because non-transgender biological females are also not allowed to use the boys’ room. Adams as such is being treated exactly the same as all biological females, not would Adams be able to use the boys’ room by detransing.
    – Title IX expressly allows sex segregated restrooms.

  13. Many businesses, both large and small, simply have single bathrooms for everyone to use.

    When I was growing up, the boys restroom was simply one big room of urinals with no partitions. The girls had individual private stalls. Pretty unfair to the guys back then.

    Maybe we just need to move into the 21st Century, with private stalls (or restrooms) not based on sex. Hospitals do it, companies do it – why not schools? Why were they segregated to begin with? Most of us see more bare skin at the public beach than in a locker room or restroom.

    1. “Pretty unfair to the guys back then.”

      – AZ

      Is this relevant?

      In Army basic training we had long open rows of sit-down toilets in the bathrooms where 100 men would SSS – those who s— together, fight together, right? – the showers were similarly wide open, as are most locker room/shower facilities.

      The drill sergeants gave us no time to asses their “fairness” or equity.

      Rumor has it that nudist camps are not dissimilar.

      My urologist employs women exclusively in his office, for all procedures; it doesn’t get much more personal, nay, public, than that.

    2. You forget those who don’t want or expect to be in a “bathroom” with the opposite sex. This from a guy in grad school with only a men’s room on the third floor. Women were in there. Call it a strategic decision by the women. The circumstances demanded it.

    3. There are two specific areas where transgenderism runs into hard problems that are not resolvable by “live and let live”.

      Sports is one, and High School Bathrooms is the other.

      Outside of HS we can probably shift bathrooms over time to a bunch of individual bathrooms with no assignement.
      But this will take time.

      But it is highly unlikely that parents are ever going to be comfortable with coed locker rooms and showers.

      In sports either MTF transgendered eventually replace all women, or are excluded from womens sports or we just get rid of sex divided sports.

      In most other contexts – no one cares.

    4. Having been a public school teacher, this is not a practical option for most schools. Schools need the capacity for thousands of students to use the restroom. The only way to make modifications that would not reduce toilet availability would be to… extend the stalls to the floor?

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