The Atlanta Journal-Constitution
Atlanta-based court weighs transgender policy
Case may set precedent in three states on trans high schoolers’ restroom access.
Three judges on the federal appeals court in Atlanta on Thursday peppered lawyers with questions in a case that could set an important precedent for bathroom access by transgender high
school students.
Two judges, members of the liberal wing of the 11th U.S. Circuit Court of Appeals, seemed ready to uphold a lower-court ruling that granted a transgender high school student access to the boys’ bathroom. But a third judge, one of the court’s more conservative members, suggested that such a ruling could lead to the end of boys and girls having separate bathrooms.
In 2017, Drew Adams, joined by his mom, sued his county school board after he was told he could no longer use the boys restroom at Nease High School in Ponte Vedra Beach, Florida. Last year, a judge in Jacksonville, Florida, ruled in Adams’ favor on equal protection grounds and also found the board violated his right not to be discriminated against on the basis of sex under Title IX, a law covering schools that receive federal financial aid.
The closely watched case is expected to result in an important precedent for transgender students in Georgia, Florida and Alabama, the three states
under the 11th Circuit’s jurisdiction. “This case is about the right of transgender students to equal dignity,” Tara Borelli, a Lambda Legal lawyer representing Adams, told the judges.
But Jeffrey Slanker, a lawyer representing the St. Johns County School Board, argued that the board’s policy segregating bathrooms on the basis of a student’s biological sex was legally acceptable.
“The Supreme Court has held the differences between the sexes are real and enduring,” he said.
As for the policy, it advances the school board’s interest in protecting student privacy in the bathrooms, he said.
Judges Beverly Martin and Jill Pryor, appointees of President Barack Obama, noted that the school policy says that a transgender student who identifies himself as a boy can’t use the boys’ bathroom if the student was identified as a girl in papers submitted prior to enrollment.
But what if a transgender boy transfers to Nease High from another school and is identified as a male on the enrollment papers? Pryor asked. That student would be allowed to use the boys’ bathroom, right?
“That’s correct, your honor,” Slanker conceded.
That would have also been true if Adams had initially identified himself as a boy, Martin interjected. “If so, we wouldn’t be here. He’d have been using the boys’ bathroom.”
Martin asked Slanker to provide evidence of any complaints about privacy concerns involving transgender students in Nease High bathrooms.
“There are no concrete instances,” Slanker replied.
Because Martin and Jill Pryor seem inclined to rule in Adams’ favor, it appears likely he’ll get the decision he wants. But getting a vote in his favor by Judge Bill Pryor, an appointee of President George W. Bush, could be decisive.
That’s because if Bill Pryor dissents, it’s possible the entire 11th Circuit court, composed of 12 members and now decidedly conservative, could revisit the three-judge panel’s decision.
During the arguments, Bill Pryor expressed concern about a ruling in Adams’ favor. Could this mean that transgender boy students could get access to boys’ locker rooms and showers? he asked.
And what about a girl student who is tired of using the girls’ bathroom because there’s always a line out the door, whereas that’s never the case with the boys’ bathroom, Bill Pryor said. Because of the delays, this student suffers from anxiety because she’s often late to class and getting poor grades.
“I’m sick of it; I want to use the boys’ bathroom,” Pryor said, finishing his hypothetical. Why couldn’t this girl seek access to the boys’ bathroom if the court rules in Adams’ favor?
This case is only about a transgender boy who wants to use the boys’ bathroom, not about an end to boys’ and girls’ bathrooms, Borelli replied. There’s no reason to consider “pure speculation and conjecture.”
Pryor said he understood that. “But now we have the prospect of a precedential decision,” he said. “I need to think about the next case. ... It’s important how this is written.”
Martin then asked Borelli if it’s possible for the court to write a narrow ruling that addresses Adams’ concerns but won’t cause new problems. With a grin, Bill Pryor jumped back in, saying, “That’s precisely what I’m asking.”
The three-judge panel is expected to issue its decision in the coming months.
Adams came out as transgender when he was 14. He began wearing masculine clothes and cut his hair like a boy.
“I made all the changes to begin living as my authentic self,” he said in an interview Wednesday with The Atlanta Journal-Constitution.
In the summer of 2015, just before Adams began attending Nease High, his mother informed officials that Adams was transitioning and would be attending school as a boy. And for the first five weeks of school, Adams used the boys’ restroom without incident.
But Adams was soon told he could no longer use the boys’ bathroom but now had access to a gender-neutral bathroom in the school office.
To Adams, the school’s refusal to let him use the boys’ bathroom meant the school refused to accept who he was.
“There was a lot of shame and embarrassment,” he said. “It was very ostracizing. I felt like the school didn’t want me and didn’t value me for who I am.”
His mother, Erica Kasper, said the decision broke her heart.
The following year, Adams began taking birth control to halt menstruation and testosterone to make his body more masculine.
In 2017, he had a double mastectomy. He also underwent a legal transition, changing his gender to male on his Florida driver’s license and birth certificate.
Adams’ lawsuit was assigned to U.S. District Judge Timothy Corrigan, appointed to the bench by President George W. Bush. Last year, Corrigan ruled in Adams’ favor and ordered the school system to allow him to use the boys’ bathroom, which Adams did during his senior year.
Adams, an honor student at Nease High, is now a freshman at the University of Central Florida, where he’s studying psychology and political science.
“I’m very hopeful the court will rule in our favor,” Adams said. “I realize how much bigger than me this is.”