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 County, there 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
What is this Country coming too and I wonder where it’s going? There are people who are seeing how far they can push the people who know the deference between a girl and a boy. So what about the rights of a girl or boy who want their bodies to be private from prying eyes? It’s not a bathroom they want its the show they want.
I believe in foundations and origins. If you want to understand a thing, go to the genesis of that thing. And by understanding the origins, you understand that thing entirely.
Regarding this subject, I list 3 facts for the jury to deliberate upon. Do with them as you will.
FACT 1: There are 2 sexes (man and woman) according to the CHRISTIAN BIBLE.
FACT 2: There are 2 sexes (man and woman) according to the MUSLIM QURAN.
FACT 3: There are 6 sexes (I can list them all, if you like), according to the JEWISH TALMUD.
Origins, people.
Find where a thing comes from and you find the enemy you must defeat.
“Choose your fiction.” “I’ll endorse it”….W.S.Gilbert
I totally agree! All major religions believe in man and woman….And THEIR children! .At root probably the ten commandments….”honor they father and MOTHER. “…..but this whole scam about gay marriage and now in its wake these “transitioners”….is to somehow cutout and eliminate the “mother’s part…..the female part almost entirely. Everyone knows from nature it only takes a few bulls….but to replace humanity takes 9 months in a mother….to make a child. To be a “man’. But the sissies use Mexico city rent a womb surrogates to make their kids a commodity…akin to ordering a pet….as opposed to a holy creation between God’s man and helper woman.. And worse now they got artificial wombs…..where they can totally exploit females…just need the initial eggs off a few and they really don’t need many females at all. Like a bee hive..but humans are not or should not be worker drones. If this case is the split at the supreme court….I guarantee america parts company too. America will be over and regions that remain will look about how Russia predicted 55 years ago….when they didn’t have telepathy or remote viewing …..it will be for our “posterity”….what ever that meant…..aa half the country bible and gun clingers….is going to eventually call a spade a spade….for their posterity.
If these people can get you to by into this bathroom BS, they can get you to believe anything.
“Given the countervailing decision of the Fourth Circuit in G.G. v. Gloucester County, there is now a conflict in the circuits that could prompt a Supreme Court review.”
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The 4th Circuit has gone from crazy conservative to crazy liberal. Typical of the seesawing society we are saddled with. Most of those judges’ grandkids go to private school. Imagine that. Damn rabble, we peasants!
Perhaps I am misusing the term irony…
But I find it ironic that someone who claims to be trans seems to deny that there are two biological sexes. By definition, someone who is trans is born as one sex but identifies as the other. Thus trans.
So being forced to use the bathroom of their genetic sex doesn’t discriminate because they by definition recognize that they are that sex.
(Post trans… its a different story. The plumbing has been surgically changed.)
Ian Michael Gumby,
Interesting observation.
Thank you.
It does discriminate..on the basis of sex.
It is just that in this case, the discrimination is permitted both by the equal protection clause and Title IX.
I am confused by their logic too. At root they believe there are two sexes….or do they? We are the ones using biology …if the two materials penis vs no penis to describe things…..they are merely responding to how it’s always been….And saying it’s not fair…..that they don’t go on the rag every 28 days….for 35-40 years…..or spend 3-4 years in menopause…..or get knocked up…which produces half of humanity! No they wanna wear a felt wool checkered lumber man jackect…..And be pissed you didn’t realize they were so bright because they were on the rag. ….I get it now. Pardon me….for having ovaries….And all the stupid money you spend pretending these insane people can build a vagina on 3d print…..takes away from ovarian cancer…..I get it it’s more important for women’s health…..how much hormones to give a boy….than women’s health at root.. Kids kids my living ass!…never mind you mothers chia….vagina …source of life….you’re disinherited!
Motion to revoke the laws that said women have voting or property rights…..these laws are suppluflous! Everyone has voting and property rights. Whether a man or woman! Suffrage was misplaced. There was no need for it….since anyone who wants to be a man….can simply be come a man. So there is nothing to complain about….
Dear Prof Turley,
I’m not sure what going to the bathroom has to do with ‘sex’ in the first place? For me, these are two separate things. .. and I don’t see how they got all mixed up and tied together.
In a pinch, I’ll pee in the woods. If you gotta go, you gotta go (see ‘The River Runs Yellow’, by Who P. Freely.). I have a two-seater outhouse up on the North Fork for that very purpose .. . and that should cover everybody.
Sex is different. .. I said to the night, “If you are in love with the moon, it is because you never stay for long.” The night turned to me and said, “It is not my fault. I never see the Sun.” ~ Jalāl al-Dīn Muḥammad Rūmī
*Seasons greetings https://www.youtube.com/watch?v=pG2msnTHMNI
Sex is not assigned at birth. It is determined at conception. XX means a female and XY means a male in the vast majority of cases in mammals (We are mammals). This has been determined by 3.5 billion years of life and progression to complex animals. So I think his has been determined long before a judge, lawyer, or humans (for that matter) walked the earth. There’s are rarities when nature screws up and someone is born a hermaphrodite and has the sex organs of both sexes.
The human brain is an organ just like any other organ and it can be ill with structural disease, infectious disease, mental illness and such. Again, in the vast majority, it works as designed but it is higly complex and can go offline. As a physician it was always better to return our patients to the design specifications than to try to create something new.
The transgender phenomenon is more a social/political/mental health movement than anything else.
The Trans mental health needs to be treated, not the perfectly normal body that carries it.
Call the bathroom the transition bathroom, if you will. I agree that no student or adult should be allowed in the other sex’s bathroom until they have fully transitioned hormonally and surgically.
We also need fully unbiased studies of the efficacy of transition hormonally vs surgically vs psychiatric/psychological.
We (figuratively) have rushed into this without appropriate studies. Right now the studies consist of the loudest voices / money / media and not reason.
If we ever want to throttle the prog/left multicultural miasma that is destroying our culture (you know, the one that was wont to sustain our constitution) then we may as well start with this easy target and clear the air. There are only 2 genders but many forms of mental illness. Period.
Thank you very much for posting this article. St. John’s County Florida makes a reasonable accommodation for Andrew Adams transgender claim, provides him a separate bathroom to use, and somehow some Justices argue that Adams is STILL a victim ? Seriously ? It sure seems like the United States is rapidly becoming a country of “the tail wagging the dog” but what do I know. Thank you.
How humankind has advanced over the centuries! For thousands of years of human history, this has not been a concern. Suddenly, in the past fifteen years this is an issue.
This has nothing to do with individual rights and everything thing to do with being a mechanism (one of many) to destroy society and normal behavior. Why?
There are no shortages of those who are obsessed with controlling the lives of others for malicious purposes. Authoritarian, totalitarian and despotic leaders must first destroy individual and family independence to achieve their goal. The activists must systematically erode the standards, laws and social norms to successfully subdue some and radicalize others. They will never compromise because they are not reasonable. Give an inch and they take a mile.
If you question them they instantly employ subversive, textbook methods of psychological warfare.
We live in bizarre (and dangerous) times and the past three years beyond comprehension.
One part of this story says “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”. Please show the medical and scientific documentation to back that up. A man, via war or accident looses his genitalia. Doctor’s save his life. Does he stop being a man ? What is the medical basis for continuing to call him a male ? Political correctness does not change medical reality. With surgery one can make themselves “look” like a cat. They can Evan act like a cat. Reality check. No matter how much surgery you have, or how loudly you tell others you are a cat. No doctor will accept your claim. If you are convinced that you are a cat, there is high probability that you will be locked up and treated for Psychosis. Show me fundamental differences between the cat persons detachment from reality and the man who truly thinks they are, and sees himself as a woman. Why won’t he be locked up and treated for
Psychosis ? Political correctness over medical reality.
Sollvermn,
Great post.
>> 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. <<
Finally. Someone willing to tell the radicals they will not allow them to redefine words to achieve political goals. More, please.
I am way too old to have my daughter affected by this lunacy. But my wife would have to have bail money ready ( maybe not I live in Illinois) if a biological Male was in my daughter’s school bathroom. There are 2 genders. I don’t care how you dress. I don’t care who you have sex with ( as long as it is not with a minor).
I am going to identify as a billionaire. And if a bank doesn’t give me a hundred thousand dollar line of credit, I will sue them. Because that is not ” fair”. My feelings are hurt. Just because you “Identify” as something does not make it true.
Agree with you staement
Agree with your stamen, flower
This like Roe can only be decided by the people closest to the situation.
The judges rulings clearly show they are forced to contort the language in a manner to agree with their personal, not legal, or constitutional basis.
Just like Roe, the people are defining when life is due protection. Gender MUST be afforded the same opportunity for the PEOPLE, not judges, to sort out this cultural, not legal conundrum.
It is proven again and again, Judges are poking around in things they have no jurisdiction to rule on. You would think if judges were as smart as the claim to be, applying a little bit of history would be at the top of their considerations.
This is a public school governed by a body elected by the people. Judges need to back off and allow the people to be self governing.
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.
So much for “follow the science!”. Much like the Roe v Wade decision, Judges have no competence in these medical scientific discussions particularly when they make the above statement. Sex does not change. It is neither medically nor scientifically flawed to state that the >30 trillion cells in the human body, with each possessing 46 homologous chromosomes, expressing either XX or XY genomics, do not care one iota as to children’s or parents fantasies. Setting aside the sheer vastness of the number of cells and hence chromosomes in our body, every day millions of cells die while replaced with millions of new cells generated through mitosis. These new cells will be identical to their parent cells, either XX or XY genetically. No one can change that. Thats a fact.
Each time teenager Andrew Adams … 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.
It is ironic the Judge used the term “shame”. Where is the Judge’s shame? And the parents? Where is their shame in abdicating their responsibilities as adults to form and shape the conscience of their children? This is the true tragedy of America today: parents long ago opted to become “friends” of their children as opposed to being the mature adults in the family. As recent headlines show, once the child becomes an adult, they blame their parent for not protecting them from themselves, as many detransitioning trans young adults are now expressing.
Men and women have different physiology. Assuming Adams decides to identify with the opposite sex, their physiology and genome will not subscribe to their infantile fantasies like their parents have. Additionally, the human brain continues to mature and develop until age 25. Till then, you are a child and your urges and impulses will not be put in check to mature, cognitive processes because the human brain is not capable until age 25. The parent serves as that very purpose: the guide the child into adulthood.
If you were born XX or XY, that is what you are physiologically and anatomically (skeletal, muscular, ratios and proportions). If they want to undermine their genetic programming, they are welcome to do so after turning 25 on their dime, their risks, with no consequence to the rest of us.
see:
Klein SL, Flanagan KL. Sex differences in immune responses. Nat Rev Immunol. 2016 Oct;16(10):626-38. doi: 10.1038/nri.2016.90.
Cited over 2100 times in just 6 years, a whopper of a record.
Sex is a biological variable that affects immune responses to both self and foreign antigens (for example, those from fungi, viruses, bacteria, parasites and allergens). The sex of an individual is defined by the differential organization of chromosomes, reproductive organs, and sex steroid levels; it is distinct from gender, which includes behaviours and activities that are determined by society or culture in humans.
others:
Rosano GM, et al. Gender differences in the effect of cardiovascular drugs: a position document of the Working Group on Pharmacology and Drug Therapy of the ESC. Eur Heart J. 2015 Oct 21;36(40):2677-80. doi: 10.1093/eurheartj/ehv161.
Keller KM, Howlett SE. Sex Differences in the Biology and Pathology of the Aging Heart. Can J Cardiol. 2016 Sep;32(9):1065-73. doi: 10.1016/j.cjca.2016.03.017.
Merz AA, Cheng S. Sex differences in cardiovascular ageing. Heart. 2016 Jun 1;102(11):825-31. doi: 10.1136/heartjnl-2015-308769.
Point well made Doc. As I see it, judging from the titles of some of the papers posted, the scientific community is going to have to reach consensus on how words ‘sex’ and ‘gender’ are employed. They are obviously being conflated to achieve necessary ends.That must cease and desist.
The lunacy around this issue seems to know no bounds. There are two, and only two, genders. Personal feelings aside, we cannot base a society on feelings, desires, and gender dysphoria. On the simple matter of lavatories, one is designed to accommodate persons who have a penis, the other a vagina. Individuals should be free to accommodate they gender dysphoria anyway they choose, but it is unscientific, unwise, unfair and even narcissistic to expect or demand others participate in someone else’s dysphoria. The same sanity should apply to pronoun use. Expecting anyone else to refer to you as something you think you are – but are not – is just another level of woke idiocy.
Do students today know what the G spot is and where it’s at?
I leave to the sciences to badminton about matters genotypical and phenotypical and reach consensus on the same such that the world can move forward. Let all others identify elsewhere.
Basically democrats are anti-science fascists who WANT TO FORCE delude people to CONTROL society!
Good start in the direction of arresting the trend in which one student in a school decides that the school should be accommodating in a manner that fits the student’s preferences.
I welcome what the opinion said about transgenderism as it relates to sports. It appears that the issue of competing in sports has been in one direction: biological males want to compete in female sports. I have not seen a case for example, where a biological female wants to compete in male speed scatting, or weightlifting, or boxing or football, or wrestling.
I have not seen a case for example, where a biological female wants to compete in male speed scatting, or weightlifting, or boxing or football, or wrestling.
Iowa has had highschool girls wrestling for several years. I have not yet, heard of the boy unable to make the boys team, move over to the girls team. BUT it exposes the lie, that there is no difference between XX and XY. In order to accomadate girls, they had to create a team that already existed. There are girls in football, I have only heard of them being place kickers.