The 11th Circuit Court of Appeals has vacated a prior ruling by a three-judge panel that said transgenders must have access to the bathroom that corresponds to their gender identity and will instead have the full court re-hear the case.
Last year, the panel for the 11th Circuit ruled 2-1 that St. Johns County School District in Florida had violated the constitutional and Title IX rights of Andrew Adams, a biological female who identifies as a male, by banning the student from using the boys’ restroom and instead offering a single-stall, gender-neutral bathroom.
When the case was initially presented, the student testified that using the men’s bathroom is “a statement to everyone around me that I am a boy. It’s confirming my identity and confirming who I am, that I’m a boy. And it means a lot to me to be able to express who I am with such a simple action because…I’m just like every other boy.”
In that case, Circuit Judge Beverly Martin, writing for the majority, said that Adams “does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.”
Chief Judge William Pryor issued a strong dissent, stating that the school district’s policy “substantially advances its objective to protect children from exposing their unclothed bodies to the opposite sex,” and that the majority’s opinion “distorts the policy, misunderstands the legal claims asserted, and rewrites well-established precedent.”
“By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom.”
With the announcement that it will grant an en banc rehearing of the case, the 11th Circuit “might ultimately tee up the issue for Supreme Court review,” according to Ed Whelan, a distinguished senior fellow of the Ethics and Public Policy Center.
The Supreme Court has repeatedly bypassed the chance to address the issue of transgenders and private spaces. This past June, the Supreme Court denied a request by Virginia’s Gloucester County School Board to review a Fourth Circuit decision that also ruled that schools under Title IX are required to allow a biological female identifying as a male to use the boys’ bathroom.
In Harris Funeral Homes v. EEOC, the Court ruled that it was illegal for employers to discriminate against transgenders but punted on the issue of Title IX discrimination and whether transgenders using “sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable.”
By failing to grant certiorari in the Fourth Circuit case of Gloucester County School Board v. Grimm, the U.S. Supreme Court has only added to the problems schools are experiencing with an emboldened transgender movement whose expanding demands can seemingly never be satisfied and to which school boards are working overtime to avoid offending.
As an example, the Virginia Department of Education put out transgender policy guidelines in the aftermath of the Grimm decision that not only allow transgender students to use their preferred bathroom but also call for allowing transgenders to share overnight accommodations with students of the opposite biological sex, require teachers to use students’ preferred pronouns, and ban gender-specific homecoming courts and father-daughter dances.
Now, a new report claims that a school in Loudoun County, Virginia, has gone so far as to remove “male” and “female” signs from bathrooms and plans to remove urinals from the boy’s restrooms because they offend biological girls who identify as boys.
If the 11th Circuit Court of Appeals rules in favor of the school district on the Adams case, the Supreme Court must finally weigh in. By leaving it unresolved, the Court has given the transgender community unfettered permission to run roughshod over everyone else’s rights and has left schools in disarray and confusion.
As Court watcher and legal writer Margot Cleveland recently noted, “…while the justices sit on the sidelines, the privacy rights of children (and adults) are at risk, as are parental rights, the right to free exercise of religion, and the right to free speech — which also includes the right not to be compelled to speak, even when the forced speech concerns pronouns.”