Wednesday, February 23, 2022

Full Federal Appeals Court Hears School Board Appeal of Transgender Bathroom Case. (WJCT/NSoF, Courthouse News Service)

From the news stories on the February 22, 2022 oral argument in Drew Adams v. St. Johns County School Board, it appears more than likely that justice will be done, again. 

U.S. District Court Judge Timotny Corriban and a three-judge panel of the 11th Circuit Court of Appeals agreed: St. Johns County School Board broke the law when it discriminated against Drew Adams, a transgender boy. Judge Corrigan noted that Mr. Adams' birth certificate and drivers' license were amended after he transitioned to a male: the State of Florida recognized his gender transition, which was sufficient for Judge Corrigan.

The Justice Department, arguing in support of Drew Adams, along with some 22 state attorneys general. The Supreme Court ruled anti-LGBT discriminatione illegal in the case of Bostock v. Clayton County Georgia. Nevertheless, fuled by funny money from the Florida School Board Insurance Trust, St. Johns County School Board continues fighting Mr. Adams, years after he graduated.  

The late disgraced, disgraceful St. Johns County Republican Executive Committee WILLIAM KORACH was fired by the Republican Party of Florida for nine overt acts, including sexual harassment and taking an unauthorized ultra vires position on SJCREC's behalf on the Drew Adams case.  Other-directed St. Johns County School Board harassed a transgender boy at Nease High School, even after he graduated.  

Footnote: Meanwhile the feeble febrile foul fetid School Board's pig ignorant policies of deferring to its peckerwood puerile School Superintendent leaves it powerless to do the most basic oversight and investigation, e.g., of environmental justice and children's health issues at St. Augustine High School, where the Wrestling Team is still obliged to practice on mold-contaminated mats.  Our County Commission Chair, I. Henry Dean, told me in December that he would "not set foot on a mold-contaminated mat."

St. Johns County Schools have often violated student rights, from race discrimination to First Amendment violations, as in requiring students sing a religious song as a condition of graduation.  Such petty pettifoggery is not pedagogy -- it is child abuse.

So long as smarmy, unscholarly, uncouth, unqualified Visigoths get elected to School Board seats and appointed as School Superintendents -- wrapped in their own hopelessly provincial concerns about building four new schools a year -- student rights will continue to be violated. 

If it continues ignoring student rights and mental health, our ineffectual St. Johns County School Board will remain a legal laughingstock, a stench in the nostrils of our Nation, repeatedly breaking the law.


Appeals court weighs transgender bathroom case

Drew Adams.jpg
Ron Harris
Transgender student Drew Adams, right, and his attorney, Tara Borelli, listen to questions from reporters outside of the 11th Circuit Court of Appeals on Dec. 5, 2019, in Atlanta.

In a closely watched case that could have national repercussions, a federal appeals court on Tuesday peppered attorneys with questions in a lawsuit over whether a St. Johns County high school should have prevented a transgender male student from using boys’ bathrooms.

The lawsuit has drawn attention from dozens of the nation’s largest corporations, 70 anti-sexual assault and domestic violence organizations, myriad LGBT advocacy groups and the U.S. Department of Justice.

The case has also become a battleground for 40 states and the District of Columbia that signed onto briefs in the case, which stemmed from a St. Johns County School Board policy that prevented Drew Adams from using boys’ restrooms.

Adams and his mother filed the lawsuit in 2017 after Nease High School required him to use a gender-neutral, single-stall bathroom or girls’ bathrooms. A U.S. district judge sided with Adams, leading to the St. Johns County School Board taking the case to the 11th U.S. Circuit Court of Appeals.

The full federal appeals court heard arguments Tuesday after a three-judge panel of the court ruled in favor of Adams in July. The Atlanta-based court subsequently vacated the panel’s ruling and ordered what is known as an “en banc,” or full court, hearing.

The arguments focused on whether the school-board policy violates constitutional equal-protection rights and Title IX, a federal law that bars sex-based discrimination. The board maintained that the restrictions on Adams were necessary to address students’ privacy and safety concerns.

“The question here is whether the policy discriminates against transgender students, and isn’t it the case that transgender students have to use either the birth-assigned sex bathroom or a unisex bathroom?” Judge Robin Rosenbaum asked Jeffrey Slanker, an attorney who represents the school board. “Why isn’t that discriminatory towards transgender students?”

“I wouldn’t concede the policy discriminates against any student,” Slanker said, adding that the policy “had nothing to do with Mr. Adams’ gender identity or any students’ gender identity.”

The school district decided that Adams had to use the bathroom of the gender that was identified on district enrollment documents. Adams enrolled in the school district as a girl in fourth grade and came out as a transgender boy to his parents in eighth grade, court records said. He graduated from high school as the case continued.

“Andrew Adams was treated differently because he was identified as one sex at birth and he identifies as male today,” Tara Borelli, an attorney with Lambda Legal who represents Adams, told the appeals court Tuesday, adding that is “precisely what” a 2020 U.S. Supreme Court ruling in a case known as Bostock v. Clayton County “says is impermissible sex discrimination.”

Adams was in the courtroom for the hearing Tuesday. In an interview with Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications, he expressed optimism.

“It’s kind of hard to tell how I feel,” he said. “The judges asked a lot of really good questions. They all seemed to be very thoughtful, inquisitive and engaged, but it is really hard to say beyond that.” He added: “It’s hard not to have a lot of hope, though.”

But some judges expressed concern about how far schools would have to go to accommodate students.

“What happens when you have a gender-fluid student who is anatomically, biologically a male and identifies on Monday as a female and wants to use the restroom?” Judge Barbara Lagoa, a former Florida Supreme Court justice, asked.

Borelli pointed to a policy that she said has been in place for “many, many years” in Broward County.

“What they do is they try to make sure the request is genuine,” she said.

Previous court testimony “showed that no one ever uncovered any problems with pretenders,” Borelli said.

But Judge Kevin Newsom pressed Borelli about a hypothetical student who “just sort of like truly doesn’t fit in with the boys, is bullied by the boys and begs for an accommodation to participate in the girls’ PE class and claims that he will be emotionally traumatized” if not permitted to do so.

“Isn’t that likewise discrimination on the basis of sex under your theory?” Newsom asked.

“You know, I’m not sure I’ve heard of such a hypothetical student, and it certainly wouldn’t speak to a transgender student,” Borelli said. “The evidence here in this case is that a transgender student is someone who consistently, persistently and insistently identifies as a sex different than their sex at birth. … I’m not sure the answer would be to send that student to the girls’ locker room, your honor.”

Elizabeth Hecker, an attorney with the U.S. Department of Justice’s Civil Rights Division, said there might be other ways for schools to address a cisgender student in the scenario Newsom described without violating the Title IX anti-discrimination law.

“Whereas here, the only way to remedy Mr. Adams’ harm was to let him use the men’s bathroom because the lack of being able to do so was what was harming him,” Hecker said.

Judge Charles Wilson asked Slanker how the school would handle students who had “anatomical changes” between 11th and 12th grades.

“Does the policy say anything about that?” he asked.

“The policy is fairly simple. It just says that a biological male must use the men’s room, biological women must use the women’s room,” Slanker said.

In a brief filed in October, the School Board argued that its policy “withstands constitutional scrutiny because it is based on the real and enduring differences between the sexes. To recognize these differences when making policy decisions is not a form of sex-based stereotyping. The School Board’s policy is simply not the type of stereotype-driven classification that the Equal Protection Clause forbids.”

But the Justice Department disputed the board’s rationale, relying in part on the Bostock decision that found the Civil Rights Act of 1964 protects employees from discrimination because they are gay or transgender.

“First, prohibiting Adams from using the boys’ restrooms does not further the School Board’s asserted interest in privacy because the boys’ restrooms at Adams’ high school have individual, private stalls that are designed to prevent exposure of a student’s anatomy,” the Biden administration’s lawyers wrote in a November brief. “Second, the school board’s refusal to accept updated documents in determining a transgender student’s sex is arbitrary.”

A judge earlier this month temporarily suspended a federal lawsuit in Broward County pending the outcome of the Adams decision by the appeals court. In that Florida case, a student sought to play on the women’s high school soccer team but was barred under a new Florida law signed by Gov. Ron DeSantis that prohibits biological males from competing on female sports teams.

Elise Elder of Fresh Take Florida contributed to this report. Elder can be reached at

From Courthouse News Service:

Florida school defends transgender bathroom policy before full 11th Circuit

The appeals court agreed to rehear the case en banc after a three-judge panel upheld a decision finding it is unconstitutional for a Florida school board to prohibit a transgender boy from using the bathroom matching his gender identity.

ATLANTA (CN) — The en banc 11th Circuit heard arguments Tuesday over whether a Florida school board's policy prohibiting a transgender student from using the bathroom matching his gender identity is unconstitutional, after a three-judge panel held that it is.

The school board for St. Johns County, Florida, has a policy that says biological boys may not use the girls’ bathrooms and biological girls may not use the boys’ bathrooms. However, the student's "biological sex" is based on what they identify as on their enrollment paperwork. 

Drew Adams, a transgender boy at Nease High School in Ponte Vedra, filed a lawsuit against the school board in 2017, arguing that he was discriminated against and felt “alienated and humiliated" when he was told he would be subject to disciplinary action if he continued to use the boys' bathroom.

While Adams initially enrolled as female, he had since then been diagnosed with gender dysphoria by his
therapist and endocrinologists and has undergone medical transitions. including monitored hormone therapy and a mastectomy. Adams also underwent legal transition by correcting his driver’s license and birth certificate to reflect his male gender.

Other students and school officials recognized Adams as a boy in all respects and he had no incidents using the boys' bathroom. However, when two anonymous female students reportedly complained, Adams was ordered to use either the girls' or the gender neutral bathroom.

U.S. District Judge Timothy Corrigan in Jacksonville ruled that the bathroom policy violates Adams' civil rights and issued an injunction preventing the school board from enforcing it against him.

After Corrigan's decision was upheld by a three-judge panel of the 11th Circuit in 2020, the school board successfully petitioned for an en banc rehearing the following year as the case attracted interest from the U.S. Department of Justice. 

Tuesday morning's oral arguments focused on whether the school district's policy of assigning bathrooms based on sex violates the equal protection clause of the Constitution or Title IX of the Education Amendments Act of 1972.

U.S. Circuit Judge William Pryor, a George W. Bush appointee, dissented from the majority's holding in the original panel decision, arguing that Congress could not have intended the term “sex” to include gender identity when the law was enacted in 1972 because the medical community at that time “was firmly opposed to sex reassignment surgery.”

Title IX prohibits sex discrimination in educational programs and activities, but it also permits schools to maintain
separate facilities for the sexes, which includes restrooms. 

Pryor focused on privacy concerns and asked the school district's attorney, Jeffrey Slanker, if there was any danger of someone being exposed to the body of someone of the opposite sex.

After Bill Clinton-appointed U.S. Circuit Judge Charles Wilson interjected and said there's no evidence of that, or that "a boy's privacy was violated by Drew's presence in the bathroom," Slanker argued back that the school shouldn't have to wait until an incident occurs before taking preventative actions. The school board's brief to the court also states that "there is no evidence the policy was motivated by a discriminatory purpose towards Adams."

Adams' attorney, Tara Borelli, pointed out to the judges that her client had used the stalls in the boys' bathroom, which are there to ensure student privacy. 

Borelli argued in her brief that the district court "found that Andrew’s identity as a boy is no less consistent, persistent, or insistent than any other boy. By the time of the ruling, Andrew had socially, medically, and legally transitioned, living consistently with his male identity in all aspects of life."

U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee, questioned the school district's use of the term "biological sex" and called it "not very precise," as the district court found Adams to be a male based on medical evidence suggesting each person has a number of sex-related characteristics that may or may not be congruent, making external genitalia an inaccurate "proxy" to determine one's sex. 

With the possibility that student's sex marker on their enrollment paperwork may not match their biological sex, Borelli said that a transgender student who enrolled before their gender dysphoria diagnosis, such as Adams, can never correct their gender with the school. 

U.S. Circuit Judge Adalberto Jordan agreed. "That can't possibly satisfy the equal protection clause," the Obama appointee said. 

"Everyone recognizes him as male and the school board would still send him to the woman's bathroom?" Borelli asked. "The classification undermines its own interests."

Borelli noted that no one ever claimed that Adams had engaged in any misconduct while in the boys' restroom and that the school board confirmed that neither of the two female students expressed privacy or safety concerns in their report, although it was never described at trial. 

An attorney for the Justice Department's Civil Rights Division also addressed the court in support of Adams' claims that isolating a transgender student from their peers in restrooms constitutes discrimination.

"The gender neutral bathroom singles Adams out," said Elizabeth Hecker. 

Some of the judges expressed concerns about other plausible scenarios that could arise, including U.S. Circuit Judge Kevin Newsom, who asked about a hypothetical situation where a boy wanted to join a girls' gym class.

Newsom's concerns were echoed by Donald Trump-appointed U.S. Circuit Judge Barbara Lagoa, who asked, "What do you do if a student is gender fluid?"

The judges did not signal when they intend to issue a ruling.

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