The 11th Circuit Court of Appeals gave those of us in Alabama, Georgia and Florida something to celebrate at the end of 2022: peace of mind that our children will not have to be exposed to (or expose themselves to) people of the opposite sex in locker rooms and bathrooms.
The path to this victory in Adams v. The School Board of St. John’s County, Florida began when a female student identifying as a male brought a lawsuit against a Florida school district. The district required biological males and females to use separate locker room and bathroom facilities, although single-stall, sex-neutral bathrooms were available to all students.
After a vigorous judicial fight requiring all sitting judges to get involved, the court ruled 7-4 that the school district’s policy was perfectly legal. The opinion was written by Judge Barbara Lagoa, who was on President Donald Trump’s short list to replace the late Justice Ruth Bader Ginsburg.
Unfortunately, liberal lawyers across the country have successfully persuaded federal judges to read LGBT rights into the law that are simply not there. The Adams case appears to be the first major decision from a federal circuit court that went the other way, and the way it got to that point is commendable.
The first commendable point is that the 11th Circuit recognized that sex is static, not fluid. Sometimes when courts reach the correct result, they do so on exceptionally weak grounds, not wanting to address the elephant in the room. Not so in this case. The 11th Circuit rejected the plaintiff’s claims on the principle that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth,” quoting a Supreme Court precedent that the left conveniently forgets.
Such a move sets a great precedent for similar Alabama cases. Right now, the 11th Circuit has Eknes-Tucker v. Marshall before it, in which transgender minors and their parents are challenging an Alabama law that bans puberty blockers and cross-sex hormones for children. It is also considering Corbitt v. Taylor, in which several transgender people are challenging a rule that Alabama drivers must have their biological sex listed on their driver’s license. Alabama’s chances of winning in Eknes-Tucker and Corbitt just went up after Adams.
The 11th Circuit’s refusal to use the plaintiff’s preferred pronouns is another positive development. The court dodged the issue by referring to the plaintiff as “Adams.” While it may seem like a small matter, using pronouns that do not comport with a person’s biological sex is a major steppingstone to conceding the ultimate issue.
Third, the court correctly distinguished the U.S. Supreme Court’s erroneous decision in Bostock v. Clayton County, a case which held that Title VII prohibits workplace discrimination on the grounds of gender identity or sexual orientation. Bostock was egregiously wrong. However, there are some key differences in how Title VII and Title IX—which was at issue in the Adams case—are structured, making Bostock distinguishable from Adams, which the court rightly recognized.
As good as the Adams opinion was, there are two things that would have made it even stronger. Because the Supreme Court has never addressed this particular issue, I think the 11th Circuit was free to analyze the Equal Protection Clause according to its original meaning and apply it to this case. As the Alabama Center for Law and Liberty (ACLL) argued in its amicus briefs for Eknes-Tucker and Corbitt, there is no way that LGBT rights could be read into the Constitution if we interpreted the Equal Protection Clause in that light.
Additionally, the court conceded that this sex-based classification automatically triggered intermediate scrutiny, a legal test that is more difficult to pass than what the State usually must prove. As the ACLL argued in its amicus brief for Corbitt, that level of scrutiny is only triggered when sex-based discrimination is at hand. That didn’t happen in the Adams case, because both sexes had to comply with the bathroom policy.
Regardless, the 11th Circuit’s opinion in Adams is still the best opinion from a federal circuit court on this matter that I’ve ever seen.
If the Supreme Court steps in on this case, then the Court’s conservative-leaning justices—including Gorsuch and Roberts—will hopefully take note of how the 11th Circuit handled this matter and follow suit. If they follow this precedent, school boards will be free to protect not only children in Alabama, Georgia, and Florida, but all across America.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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