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If It’s All Good, Then Why Is It Stigmatizing?


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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