Eleventh Circuit Panel Reassigns Sex

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I’ve been away for several days, so I’m only now catching up on last Friday’s bizarre Eleventh Circuit ruling in Adams v. School Board of St. Johns County.

Last August, a divided panel of the Eleventh Circuit ruled that a school board violated the Equal Protection and Title IX rights of a transgender student, Drew Adams—a girl who identifies as male—by barring her from using the boys’ restroom. Last week, in an apparent effort to evade en banc review (“to get broader support among our colleagues”), the panel majority—Judge Beverly Martin, joined by Judge Jill Pryor—vacated its opinion from a year ago and substituted a new and very different opinion. As Martin sums it up, “This revised opinion does not reach the Title IX question and reaches only one ground under the Equal Protection Clause instead of the three Equal Protection rulings we made in the August 7 opinion.”

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Unfortunately, Judge Martin’s new opinion is no more persuasive than her opinion last August.

Martin purports to apply intermediate scrutiny to a bathroom policy that “categorizes on the basis of sex.” But in what Chief Judge William Pryor in dissent calls “linguistic sleight of hand,” she uses sex as a synonym for gender identity and actually objects to the disparate impact that the bathroom policy has on Adams, who, unlike other students, can’t use a multi-stall bathroom that comports with her gender identity. (Lest there be confusion between the joining judge and the dissenter: All further references to “Pryor” in this post are to the dissent.)

Martin contends that the school district “assigns students to sex-specific bathrooms in an arbitrary manner” by relying “solely on the sex indicated on a student’s enrollment documents.” That policy, she argues, is arbitrary in two ways. First, because some transgender students could misstate their actual sex on their enrollment documents, the policy “does not even succeed in treating all transgender students alike.” Adams can’t use the boys’ restroom because her enrollment documents accurately identify her as biologically female. But if a girl inaccurately identified herself on her enrollment documents as male, she could use the boys’ restroom. Second, the policy doesn’t allow “current government records” (e.g., a driver’s license) to trump the enrollment documents. Of such stuff we are supposed to believe that a violation of the Equal Protection Clause is made.

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In dissent, Pryor explains that there is nothing arbitrary about relying on the sex that a student reports on enrollment documents. The “possibility of evasion” does not render the school district’s practice unconstitutional, and “[e]ven if every single transgender student successfully enrolled as a member of the opposite sex, the school district would still be 99.96 percent accurate at identifying the sex of its students.” “Nor is there any reason for the school to accept updates,” as the purpose of using enrollment documents “is to determine students’ sex, not their gender identity.” The bottom line is that “there is nothing unlawful, under either the Constitution or federal law, about a policy that separate bathrooms for schoolchildren on the basis of sex.”

I don’t see how any sex-segregated bathroom policy could survive Martin’s scrutiny. By disregarding (i.e., declining to discriminate on the basis of) transgender status, any such policy will inevitably have a disparate impact on transgender students. Moreover, even a policy that looks to “current government records” wouldn’t “succeed in treating all transgender students alike.” And what about gender-fluid individuals who don’t identify as either male or female? It would seem that Martin is really insisting that the Constitution requires that transgender students be given the unique right to use whatever bathroom they prefer.

Let’s hope that Martin does not succeed in bamboozling her Eleventh Circuit colleagues into denying en banc review of her ruling.

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