Update on Adams v. St. Johns County School Board
April 2, 2023
The first half of this post is in front of the paywall. The second half, containing more in-depth legal analysis and commentary, is behind it.
On January 1 of this year, I tweeted that the US court of Appeals for the 11th Circuit had ruled that sex means sex (not “gender identity”) under Title IX and that schools may constitutionally maintain single-sex bathrooms. This was a full court (en banc) ruling, meaning that a majority of that appeals court understands the material reality of sex. I’m not thrilled that most of the judges who understand the material reality of sex are Trump appointees, but there’s hardly anything I can do about that; I voted for the email lady.
The gist of the ruling was that sex means sex under both Title IX (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”) and the Equal Protection Clause of the 14th Amendment (“No State shall make or enforce any law which shall .. deny to any person within its jurisdiction the equal protection of the laws.”).
I also noted that in a concurring opinion, a judge quoted UK feminist and developmental biologist Emma Hilton (@FondOfBeetles on Twitter - check her out!) extensively and favorably. As far as I know, this is the first (and only) time a US judge has quoted a UK feminist author in a court opinion about matters pertaining to sex and gender. I added a note that the Women’s Liberation Front (WoLF - @WomensLibFront on Twitter - check them out too) had filed a friend of the court brief in favor of the material reality of sex in the case (full disclosure: I helped write that brief when I was serving on the WoLF board).
This ruling got the attention of UK-based commentator (and all-around awesome and hilarious person) Andrew Doyle, who had me on his show on GB News to talk about it.
The point of this post is to note this development: The plaintiff in the case is a young woman who claims to be a man and who had demanded access to the boys’ bathroom in high school, in violation of school district policy. After many twists and turns, she ultimately lost before the 11th Circuit en banc court. She is represented by Lambda Legal Defense Fund, an organization that works very hard to dismantle legal protections for women and girls. Lambda Legal has decided not to file a petition for review before the Supreme Court. The 11th Circuit en banc decision stands.
Notably, the majority opinion only rules that sex means sex for the purpose of maintaining single-sex bathrooms and does not address sports. The concurring opinion that quotes Dr. Hilton essentially states that the same analysis that applies to bathrooms should also apply to sports. But since that opinion did not get a majority of votes, the majority ruling doesn’t affect sports. I would argue that the concurring opinion is right and that if sex means sex for purposes of maintaining single-sex bathrooms, then sex should also mean sex for purposes of maintaining single-sex sports. But what do I know? I’m not a federal appeals court judge.