When asked what a woman is at her confirmation hearing, Judge Ketanji Brown Jackson demurred. Some attacked her for it, but it was the only answer she could legitimately provide since that will likely be an issue that comes before her as an associate justice on the Supreme Court. The Eleventh Circuit’s en banc decision in Adams v. School Board of St. Johns County, in contrast with the Fourth Circuit’s G.G. v. Gloucester County decision, is why.
Both cases involve the question of whether a sincere transgender high school student can use the bathroom/locker room that corresponds with the students’ gender identity rather than sex. In both, the students possessed, at least in part, the genitalia with which they were born. The same Title IX carve-outs for single sex bathrooms applied. Yet the decisions took opposite directions.
The Eleventh Circuit en banc decision split 7-4, more or less, reversing the district court and initial panel that held in favor of the student. The core question was belied by the simplicity of the opening paragraph of Judge Lagoa.
This case involves the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex. 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 kicker in there, which can be missed in passing if it’s not pointed out, are the words “biological sex.” The real question raised by the case isn’t whether schools can have single sex bathrooms, or whether the carve-outs per se violate the Equal Protection Clause. The real question is the corollary of the one about which Judge Jackson demurred. Who is male?
On appeal, Adams argues that the School Board’s bathroom policy violates both the Equal Protection Clause and Title IX. At its core, Adams’s claim is relatively straightforward. According to Adams, the School Board’s bathroom policy facially discriminates between males and females. Adams, who identifies as a male, argues that the policy violates Adams’s rights because, as a transgender student, Adams cannot use the bathroom that corresponds to the sex with which Adams identifies. Which is to say, Adams argues that by facially discriminating between the two sexes, the School Board’s bathroom policy also necessarily discriminates against transgender students. We disagree with Adams’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students.
Is a male someone born with male chromosomes and genitalia, or is a male someone who identifies as a male? If the former, then Adams loses. If the latter, then Adams wins. Yet, the court never squarely admits the issue nor faces it, slipping in “biological sex” as if there’s no issue.
Indeed, when we apply first principles of constitutional and statutory interpretation, this appeal largely resolves itself. The Equal Protection Clause claim must fail because, as to the sex discrimination claim, the bathroom policy clears the hurdle of intermediate scrutiny and because the bathroom policy does not discriminate against transgender students.
In contrast, Judge Jill Pryor, who was on the original panel, dissents.
This is a battle of ideology, whether gender is a matter of physical and scientific reality or a social construct to be broken down to end the differentiation between biological sex and gender identity. The end of the argument is focused on eliminating discrimination on the basis of sex against transgender people. To the extent Bostock provides a coherent answer, discrimination against transgender people is sex discrimination, not because transgender people have been judicially written into Title IX where Congress consistently refused, but that it prevails under the normal “but for” sex test.
But underlying all of this are two themes that have been largely embraced by woke people. The first is preference not to adhere to the old-fogey binary of male and female, man and woman, boy and girl. Instead, they pick the cost-free hip categories of queer, non-binary, etc. so they can be unique and special while being exactly like all their friends, bold and fearless while being part of the mob.
The second theme is that there is nothing wrong about being transgender. To my mind, there is nothing in this second theme to dispute. If someone is transgender, so what? What difference does that make to you, provided they don’t demand control over your word usage. Whether they run a law practice or a country, if they do it well, who cares whether they’re wearing dresses and heels?
But if the second theme is correct, then why does Judge Pryor open her dissent thus?
Each time teenager Andrew Adams needed to use the bathroom at his school, Allen D. Nease High School, he was forced to endure a stigmatizing and humiliating walk of shame—past the boys’ bathrooms and into a single-stall “gender neutral” bathroom. The experience left him feeling unworthy, like “something that needs to be put away.” The reason he was prevented from using the boys’ bathroom like other boys? He is a transgender boy.
Why does Judge Pryor believe Adams was “forced to endure a stigmatizing and humiliating walk of shame—past the boys’ bathrooms”? Why does she find it shameful to be transgender? Does Adams feel it’s shameful to be transgender, or does he just want to be allowed into the boys’ bathroom to make a point?
This rationalization is critical to the entire enterprise, since the endurance of humiliation would affect a transgender student’s ability to enjoy educational benefits, while “owning the cis” boys would not provide a basis upon which to invoke Title IX or the Equal Protection Clause. The problem is that Judge Pryor’s critical recitation of shame is only valid if it’s shameful to be transgender. Otherwise, so what?
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No doubt it’s “stigmatizing and humiliating” because of hateful bigots like me who will correctly point out that Adams is a girl, not a boy.
To the extent this relates to the issue in the case, the bathroom has nothing to do with your take. You just reject the notion that anyone can be transgender. No accommodation will change that.
To the extent that you reject the existence of transgender people, why do you care what someone else believes about himself or herself if it doesn’t affect you?
Maybe I am putting words in Dan’s mouth, but this is uncharitable to say he rejects the existence of transgender people. It’s possible to accept that some people are transgender, but still believe that “girl” refers to “people with a vagina” and “boy” refers to “people with a penis”, rather than anything to do with a self-perception of one’s own boyhood or girlhood. And it’s also a big part of what the majority and the dissents in the Eleventh Circuit disagree on.
It wouldn’t be stigmatizing for Adams to go in what most people think is the wrong restroom? Yeah, yeah, most people are closed minded bigots, sure, but that doesn’t eliminate the humiliation.
The school tried to split the baby and made a reasonable accommodation, but Adams declined to be reasonable, presumably because of the righteousness of their cause. No sympathy for anyone who expects everyone else to be completely discomforted for a single person’s political statement.
Wanted to clarify biological sex.
Across the animal and plant kingdoms, biological sex is defined by the size of gametes. Small, mobile gametes are male, larger (by several orders of magnitude) immobile ones are female and there is no overlap. No other trait can applied with any consistency across species and this definition is non-controversial in biology (despite the few exceptions of species of protozoans and fungi which can be counted on one hand and are likely evolving towards the binary). If gametes can’t be produced ( due to young or old age for example) then what the individual has the anatomy to produce is used.
True hermaphrodites are vanishingly rare (and warrant case reports in human medicine).
Gender is a whole other issue and none of this implies that anyone should not be treated with dignity and respect.
you are 100% correct about the science, but as the host reminds us “for every complex problem, there’s a solution that is simple, neat, and wrong.” A biological classification might be simple and neat but lead to wrong legal analyses because it was not (well) known when the laws were written.
The word “anisogamy” (gametes of different size) was coined in ~1890 and the use of the word “gender” (according to google) is up 1000% since 1980–both suggesting to me at least indirectly that the distinctions you correctly cite were not in people’s mind when the relevant laws were written. And even what people had in mind, based on common usage, may not be enough as the Bostock decision teaches.
As a PICU doctor who grew up with attorneys for parents and brothers who also succumbed to the legal call, I thank you for the Bostock reference.
Clearly I have more reading to do.
The scientific definitions were all I meant to clarify. As clear definitions lead to better laws, or so I am lead to believe,
I don’t think Adams feels it’s shameful to be transgender, but I also think Adams believes he is a literal male, no different from absolutely any other male on the planet. Because that’s what gender ideology now teaches.
For Adams, it’s neither about making a point nor feeling shame for being transgender.
For Adams, he is a boy, it is the school excluding him from normal boy behaviors, and sticking a sign over his head every time he walks into the gender-neutral restroom.
When the rest of gender-affirming society, probably including teachers at that school, is teaching that trans boys are boys, trans girls are girls, then being excluded is saying, no, we didn’t really mean that. In fact, you aren’t up to our standards. There is a line here. You can go this far, but no further.
——
My guess is that many kids who keep kosher or halal or are vegetarian at home can understand what it means when they go on some school event where lunch is provided and the provided lunch is a ham sandwich.
Or when an exam day falls on a Jewish, Muslim, or any other non-Christian religious holiday.
“I am proud of who I am, but you are telling me, I am not really one of you”
You’ve hit upon one of the most problematic issues for young people, the normalization of pathological narcissism. Society draws lines all the time about all sort of things, and some will find themselves on losing side at times and on the winning side at other times. But young people today believe they are entitled to a universe that revolves around them, their desires and their purported “identities.” Using your example, if there’s a vegan among a million people, should no one be given meat because the vegan will feel “othered”?
As a young boy, we still have school prayer and Christmas pageants. I was Jewish, and while we got Christian holiday off, Jewish holidays were normal school days. It was of no concern to me, as I understand the majority of students were Christian and so the lines were drawn to accommodate the majority, not the minority. Not only did it not hurt my feelings, but it made complete sense to me. Life went on and I never gave it a second thought.
As for what Adams feels, you don’t get to reinvent the allegations in the case and impute to him or the court your feelings. If he alleged that he felt shame, then who are you to dispute it? The universe is no more centered around you than it is around him.
You’ve hit upon the most problematic issue for old people. You perfectly embody how decrepit, 20th-Century modernist thought pairs well with spoiled entitlement.
Or do you suppose the relationship causal?
You’re going to have to try harder than “ok boomer.”
Of course, the goal is not to de-stigmatize anything, but to make people who don’t believe a subjective “identity” recognize it anyway. It is simply another bow-to-the-hat-on-the-pole campaign. It is also a Pandora’s box for the courts, as the debate is already extending to people who subjectively identify as different ethnicities and different species, and even adults who “identify” as children. When the claim is forced into the mold that the world has to agree with subjective identities in order to avoid stigmatizing the subjective identifier, it should work for any noun or adjective. At will, I can be a car, or a bird or a tree, a stellar genius, or Jew-ish, until I decide to be something else, and the world should be legally bound to honor every claim.
Wow, kind of surprised to see you construct such a massive strawman in those last two paragraphs. The stigmatism is not explicitly in being transgender, but in being forced to use a third set of bathrooms, and the Judge is quite clear in that claim in her opinion. Such treatment is calling out Adams as explicitly different and denying entry into what might otherwise be assumed to be the “normal” bathrooms. Anytime you set up “separate” facilities for a class of people like this you risk such an effect. Surely you would agree that “Whites Only” bathrooms were stigmatizing to blacks. Before anyone goes there, sex-segregated bathrooms haven’t been stigmatizibg because they are generally expected and possibly even desired by both groups being separated.
Now, whether it’s truly stigmatizing or just the typical woke hyperventilating that we’ve come to know and love, I don’t know. But it’s at least a colorable claim.
But Adams isn’t forced to use a third set of bathrooms. He’s simply prohibited from using the boys’ bathroom and, if Adams is uncomfortable with using the girls’ bathroom, the gender neutral bathroom provides an alternative option. So it reveals he’s transgender? Why would that be humiliating? He is and there’s nothing wrong with that.
Under your thinking, sure, Adams isn’t “forced” to do anything. Under the woke hyperventilating, Adams is. I’m not here to defend their talking points, though i can see how facing such a choice (as these students claim to be) might be difficult. Choosing the third option might not be outing yourself as transgender, but it is certainly “othering” yourself, if nothing else. For a rational adult, that may not be a problem. For a middle or high school kid, that’s a different story. And that’s without considering the fact that they are in an environment where assholes prey on “others.”
If the school let Adams use the boys bathroom, he wouldn’t be “othered” because he has no penis? Do you think all the boys will magically forget that he used to be a girl?
Care to think harder?
Dammit, you made me read the entire opinion again.
I take issue with the self-perceived “walk of shame” to the gender neutral toilet. The dissent deployed this finding in the first lines of the dissent to stoke pity. Will no one stop this child from being tortured by running a gauntlet of taunting students simply to make it to single stall bearing a sign stating “Transgender Students Only”? If any student in today’s time taunted a transgender student, a crushing blow would descend upon the student, expelling the student from selective colleges and polite society, much like the University of Tennessee prospective cheerleader.
This case is about the imposition of one set of beliefs upon others. The decision notes that the plaintiff student managed to use the boy’s restroom for a number of weeks before two others students complained to the school about having to watch someone who recently identified as a girl change in front of them.
However, what does that matter? They’re boys, so they can suck it up and take it. As for the imposition on others, the Penn women’s swim team eventually had to cede the women’s locker room to their teammate and change elsewhere.
> As for the imposition on others, the Penn women’s swim team eventually had to cede the women’s locker room to their teammate and change elsewhere.
I’d bet the Penn women’s abdication was itself labeled transphobic just as JKR’s building a domestic violence shelter for only biological women when all the other shelters opened up to transgender women. was labeled. The discourse is such that I doubt any alternative will be acceptable; one where the trans person is excluded but given an alternative or another where the trans person is included and others seek the alternative. The choice is clear: agree to their terms or accept the label of transphobe.
You are all missing the real point. The real goal is to maximize the number of potential sexual partners for minority populations.
That is why the widespread acceptance of gay marriage did not end the debate as many of us expected.
PS: Strange that my spell check underlines ‘sexual’ and ‘gay’ as questionable. What words am I supposed to use.