Court ruling on Florida transgender bathroom policy hints at athlete issue

As it upheld a St. Johns County School Board policy preventing a transgender male student from using boys’ bathrooms, a federal appeals court Friday indicated that similar reasoning could apply to disputes about banning transgender females from playing on women’s and girls’ sports teams.

The 11th U.S. Circuit Court of Appeals, in a 7-4 decision, rejected a district judge’s ruling that supported Drew Adams, a transgender male who challenged a policy that kept him from using boys’ bathrooms at St. Johns County’s Nease High School.

Part of the appeals-court case focused on Title IX, a federal law that prevents discrimination based on sex in education programs. The majority opinion said that "affirming the district court’s order (in the Adams case) would have broad implications for sex-separated sports teams at institutions subject to Title IX, including public schools and public and private universities."

The decision, written by Judge Barbara Lagoa, added that "equating ‘sex’ to ‘gender identity’ or ‘transgender status’ would also call into question the validity of sex-separated sports teams."

Lagoa also wrote a concurring opinion that focused on the issue of transgender females playing sports and the definition of "sex." She wrote that "had the majority opinion adopted Adams’ argument that ‘sex,’ as used in Title IX, includes the concept of ‘gender identity’ or ‘transgender status,’ then it would have become the law of this (11th) Circuit for all aspects of the statute."

"Under such a precedent, a transgender athlete, who is born a biological male, could demand the ability to try out for and compete on a sports team comprised of biological females," Lagoa, a former Florida Supreme Court justice, wrote in the concurring opinion. "Such a commingling of the biological sexes in the female athletics arena would significantly undermine the benefits afforded to female student athletes under Title IX’s allowance for sex-separated sports teams."

Florida lawmakers in 2021 passed a controversial ban on transgender females participating on girls’ and women’s sports teams. A federal lawsuit challenging the ban was filed on behalf of a transgender Broward County middle-school student.

U.S. District Judge Roy Altman in February 2022 issued a stay in Broward County lawsuit. He cited the Adams case, which was awaiting a hearing before the full appeals court, or what is known as an "en banc" hearing.

"We share the parties' (apparent) conclusion that the Eleventh Circuit's en banc decision in Adams may materially affect the result in our case," Altman wrote.

In ruling Friday against Adams, the Atlanta-based appeals court said the St. Johns County policy did not violate the constitutional equal-protection rights of Adams, along with not violating Title IX. As she wrote about the transgender athlete issue, Lagoa focused on Title IX.

Judge Jill Pryor wrote a lengthy dissent Friday, saying that "the majority opinion misuses the term ‘biological sex,’ contradicting unchallenged findings of fact that reflect medical science and oversimplifying — indeed, excising — the role of gender identity in determining a person’s biological sex."

Pryor also took issue with Lagoa’s concurring opinion that focused on the issue of transgender females on sports teams.

"In a special concurrence, Judge Lagoa writes that permitting ‘sex’ under Title IX to include gender identity would require that institutions allow transgender girls to participate in girls’ sports," Pryor wrote in a footnote. "She worries that such integration threatens to undermine the progress girls and women have made via participation in Title IX programs. But there is no empirical data supporting the fear that transgender girls’ participation in girls’ sports in any way undermines the experience and benefits of sports to cisgender girls. The fact that there may be biological differences between transgender and cisgender girls does not mean that transgender girls will so overwhelm girls’ sports programs with competitive advantages as to undermine the value of girls’ sports for cisgender girls. For one thing, there will never be many transgender girls who participate in girls’ sports, considering the very low percentage of the population identifying as transgender, only some of whom identify as girls and many of whom will not compete in sports."