Atlanta-Based Court Considers School’s Transgender Bathroom Policy

December 6, 2019by Bill Rankin
Portrait of Drew Adams, 19, and his mother Erica Kasper in downtown Atlanta on Wednesday, December 4, 2019. (HYOSUB SHIN/Atlanta Journal-Constitution/TNS)

ATLANTA — 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, both members of the more liberal wing of the 11th U.S. Circuit Court of Appeals, seemed ready to uphold a lower-court ruling that granted transgender student Drew Adams access to the boys’ bathroom at Nease High School in Ponte Vedra, Fla. The third judge, one of the court’s more conservative members, expressed concern that a court ruling in Adams’ favor could possibly lead to the overturning of policies that separate boys’ and girls’ bathrooms.

Adams, joined by his mom, sued his county school board two years after he was told he could no longer use the boys restroom at Nease High. He contended the board violated his civil rights by discriminating against him because of his sex.

The closely watched case is expected to result in an important precedent for transgender students in the three states covered by the 11th Circuit’s jurisdiction: Georgia, Florida and Alabama.

“This case is about the right of transgender students to equal dignity,” Tara Borelli, a Lambda Legal lawyer representing Adams, told the three-judge panel.

In essence, the school board’s policy told Adams “you shall not pass, we’ll padlock the bathroom door,” she said. “Your presence there is not acceptable.”

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 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.

But 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 identifies himself 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 also pressed Slanker to provide evidence of any instance of complaints over privacy 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 of paramount importance.

If Judge 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.

And Bill Pryor expressed concern about a ruling in Adams’ favor. Would this mean that transgender boy students could get access to boys’ locker rooms and showers? he asked.

And what about a female 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? Pryor asked. Because of the delays, this student is often late to class, giving her anxiety and leaving her with 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? the judge asked.

Borelli replied that this case is only about a transgender boy who wants to use the boy’s bathroom. 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.”

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 School, his mother informed officials that her son 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 called out of his history class and told over the intercom to go to the office. That’s when his guidance counselor told him that, from then on, Adams had to use the gender-neutral bathroom in the school office. The school would later erect a few other gender-neutral bathrooms. But Adams said they were so inconveniently located, he cut back on how much water he drank during the day.

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.”

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©2019 The Atlanta Journal-Constitution (Atlanta, Ga.)

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