Judge Reopens Fight on Transgender Athlete Law

By Jim Saunders, The News Service of Florida

TALLAHASSEE — After an appeals court upheld a school-board policy that prevented a transgender male student from using boys’ bathrooms, a federal judge has reopened a legal battle about a 2021 Florida law that bars transgender female students from playing on women’s and girls’ sports teams.

U.S. District Judge Roy Altman on Friday issued an order reopening the transgender-athlete lawsuit, which had been on hold for nearly a year as the 11th U.S. Circuit Court of Appeals considered a challenge to the St. Johns County School Board bathroom policy.

A sharply divided appeals court on Dec. 30 upheld the bathroom policy and indicated that similar legal reasoning could apply to disputes about transgender female athletes. Attorneys for the state and a Broward County middle-school student challenging the transgender-athlete law filed a joint motion Friday to reopen the case, prompting Altman’s order.

Altman also approved a partial schedule that the parties had suggested, with the state given a Feb. 10 deadline to file a motion to dismiss the lawsuit.

“The parties submit that this proposed schedule will afford them the necessary time to fully consider the (bathroom policy) decision and other legal developments and to place this matter before the court (Altman) in a manner that best assists the court,” the joint motion said.

Attorneys for the transgender female Broward County student, identified by the initials D.N., filed the lawsuit in June 2021, after the Republican-controlled Legislature and Gov. Ron DeSantis approved the transgender-athlete ban. The lawsuit contends that the ban is unconstitutional and violates a federal law known as Title IX, which prohibits discrimination based on sex in education programs.

In a 2021 court document, attorneys for the state argued that the law was aimed at helping ensure athletic opportunities for girls and women who want to play interscholastic or college sports.

“Men’s and women’s athletic teams, separated by sex, are more than a long-standing social custom; they protect and foster the equal opportunity of girls and women to participate in athletics,” the document said. “Courts have long accepted that boys and men are physiologically different from girls and women, and that male athletes, if permitted to compete with, would displace and exclude female athletes.”

But the lawsuit said the law (SB 1028) is “part of a wave of anti-transgender bills” across the country and would “stigmatize this teenager and separate her from her peers and teammates.” It said D.N. plays soccer and volleyball.

“SB 1028, ironically titled the ‘Fairness in Women’s Sports Act,’ has nothing to do with fairness or equality for girls or women in sports,” the lawsuit said. “By excluding transgender girls and women from girls’ sports teams and forcing them, if they want to play sports at all, to join a team that matches neither their gender identity nor their current physical status, the bill discriminates on the basis of sex and transgender status in violation of the United States Constitution and Title IX.”

Altman placed a stay on the lawsuit early last year, citing the long-running St. Johns County bathroom case, which was pending at the 11th U.S. Circuit Court of Appeals. In that case, transgender male student Drew Adams challenged the policy after being prevented from using boys’ bathrooms at Nease High School.

“We share the parties’ (apparent) conclusion that the Eleventh Circuit’s … decision in Adams may materially affect the result in our case,” Altman wrote in issuing the stay.

The Atlanta-based appeals court, in a 7-4 ruling on Dec. 30, rejected a district judge’s ruling that supported Adams. The majority opinion also said that “affirming the district court’s order (in the Adams case) would have broad implications for sex-separated sports teams at institutions subject to Title IX, including public schools and public and private universities.”

The decision, written by Judge Barbara Lagoa, added that “equating ‘sex’ to ‘gender identity’ or ‘transgender status’ would also call into question the validity of sex-separated sports teams.”

Lagoa, a former Florida Supreme Court justice, also wrote a concurring opinion that focused on the issue of transgender females playing sports and the definition of “sex.” She wrote that “had the majority opinion adopted Adams’ argument that ‘sex,’ as used in Title IX, includes the concept of ‘gender identity’ or ‘transgender status,’ then it would have become the law of this (11th) Circuit for all aspects of the statute.”

But Judge Jill Pryor wrote a lengthy dissent, saying that “the majority opinion misuses the term ‘biological sex,’ contradicting unchallenged findings of fact that reflect medical science and oversimplifying — indeed, excising — the role of gender identity in determining a person’s biological sex.”