The school board subsequently requested an “en banc” hearing, in which all the judges on the 11th Circuit would rehear the case. In an effort to persuade their fellow jurists from rehearing the case, the two judges in the majority issued a revised opinion, in which they found that the bathroom policy violated Adams’ right to equal protection, but not his rights under Title IX.
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But the full circuit eventually decided to rehear the case regardless, potentially setting up a situation where the conservative appeals court might rule that the school district was well within its rights to bar Adams from the boys’ bathroom. That would create a “split in the circuits,” in which at least two other circuit courts — the 4th and the 7th — have previously ruled that barring transgender students from using bathrooms matching their gender identities is a form of sex-based discrimination.
That, in turn, could potentially prompt the U.S. Supreme Court, which declined to hear an appeal in a similar case out of Virginia last year, to take up Adams’ case and determine definitively whether Title IX’s protections against discrimination extend to transgender students.
Several states have since taken sides in the case, with attorneys general from 22 states and the District of Columbia — all Democrats — signing onto an amicus brief in support of Adams’ contention, while 18 other states with Republican attorneys general siding with the school board, arguing that allowing people to use facilities that do not match their biological sex at birth infringes on the privacy of cisgender students who may be discomforted by sharing facilities with their transgender peers.
Recognizing the importance of the case, the U.S. Department of Justice submitting a motion earlier this month requesting the right to argue in Adams’ favor, alleging that the school board’s policy was doubly discriminatory, both on the basis of equal protection and on the basis of sex. That motion was approved by the 11th Circuit last week, reports the News Service of Florida.
“The board fails to identify any sound basis for treating Adams differently than cisgender boys for purposes of using the school restrooms, even while treating him as a boy for other purposes,” the Justice Department argued in a brief filed in November. “…Even if Adams has some anatomical differences from cisgender boys, those differences are not observable when Adams goes into a private bathroom stall and closes the door. To justify differential treatment, the differences must actually be relevant to the government’s [the school board’s] asserted justification.”
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