In an important decision that potentially tees up the issue of transgender ideology in schools for the U.S. Supreme Court to address, the 11th U.S. Circuit Court of Appeals has reversed itself by ruling that a school board’s policy of separating bathrooms on the basis of sex does not violate either the Constitution or Title IX of the Education Amendments Act of 1972.
In 2020 a three-judge panel of the 11th Circuit initially ruled, in a 2-1 decision, that a bathroom policy, enacted by the School Board of St. Johns County, Florida, did violate the Constitution and Title IX because it denied the “right” of “transgender” students to use the bathrooms that comport with their own subjective choice of a “gender identity.”
However, under the rules governing federal appeals courts, the entire 11-judge contingent of the 11th Circuit agreed to rehear the appeal, in what is called an en banc proceeding. A 7-4 en banc decision reversing the earlier panel decision was issued on December 30.
“This case involves the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex,” the majority en banc opinion written by Circuit Judge Barbara Lagoa begins. “This appeal requires us to determine whether separating the use of male and female bathrooms in the public schools based on a student’s biological sex violates (1) the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and (2) Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq.
“We hold that it does not—separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.”
The policy was initially challenged in court by a female student who “identifies” as a boy. Even though the school made available both girls’ bathrooms and single-stall, sex-neutral bathrooms for her, that wasn’t good enough for the student, who was taking testosterone to appear more masculine and even underwent a “double-incision mastectomy” to remove her breast tissue.
A federal district judge ruled in the girl’s favor, which led to the school board’s appeal to the 11th Circuit. The initial 11th Circuit panel decision affirming the trial court’s ruling was controversial at the time, and even resulted in the two judges in the majority issuing a revised decision using different legal grounds than were expressed in the first opinion.
That’s when the full 11th Circuit complement of judges agreed to get involved in an en banc rehearing.
Even the en banc ruling created controversy of its own, producing a total of five concurring and dissenting opinions in addition to the majority opinion written by Judge Lagoa.
In the end, the controversy boils down to one sentence within the 150 pages of opinions the court produced, according to Lagoa.
“A policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender status,” Judge Barbara Lagoa wrote for the majority.
The ruling creates a potential “circuit split” among the nation’s federal appeals courts because both the 7th Circuit and the 4th Circuit have ruled in favor of students wishing to use the bathroom facilities consistent with their “gender identity” rather than their sex at birth. Such circuit splits make it more likely that the U.S. Supreme Court can be convinced to take up the issue in this case to resolve the split and ensure uniformity among the circuits on this issue.
Legal expert Ed Whelan, who writes for the “Bench Memos” online page of National Review, labeled the en banc ruling “excellent” and “a stroke of judicial sanity,” the latter comment referring to the contrary rulings of other federal appeals courts.
The ruling, if affirmed by the Supreme Court, could also benefit women’s sports in school.
Alliance Defending Freedom (ADF), which has been deeply involved in defending women’s sports against policies allowing males to compete as females based on their “gender identity,” pointed to important language in a concurring opinion written by Judge Lagoa (yes, she wrote the majority opinion and her own concurring opinion on the sports issue) in a press release.
“Judge Barbara Lagoa pointed out in her concurrence, ‘removing distinctions based on biological sex from sports, particularly for girls in middle school and high school, harms not only girls’ and women’s prospects in sports, but also hinders their development and opportunities beyond the realm of sports—a significant harm to society as a whole,’” ADF observed.
ADF submitted an amicus brief in the case on behalf of a group of medical professionals and scientists in support of the school board’s policy.
The girl who sued the school board for the right to use the boys’ bathrooms is represented by Lambda Legal – a leftist legal organization.
“This is an aberrant ruling that contradicts the rulings of every other circuit to consider the question across the country,” Lambda lawyer Tara Borelli, told Reuters. “We will be reviewing and evaluating this dangerous decision …”
The Daily Citizen will keep you updated on this case and any appeals filed with the Supreme Court.
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