Transgender athlete law challenge hinges on result in bathroom use case, judge says

Tallahassee Democrat | By Elise Elder, Fresh Take Florida | February 14, 2022

GAINESVILLE – The outcome of a landmark civil rights lawsuit being waged over Florida’s new law banning transgender girls from girls’ sports teams in schools may depend on the verdict in a related legal battle, a judge has ruled.

In that related case, a federal appeals court is deciding whether a transgender student should have been allowed to use the boys’ high school bathroom. The decision was expected to directly affect a lawsuit filed by the family of a transgender soccer player in South Florida.

The entire group of judges for the U.S. Court of Appeals for the 11th Circuit in Atlanta will hear oral arguments Feb. 22 in the lawsuit over high school bathrooms at Nease High in Ponte Vedra Beach near Jacksonville.

A three-judge appeals panel previously ruled that the school violated the equal-protection rights of the student, Drew Adams, but the full court is reconsidering the case.

In South Florida, a federal judge this week temporarily put on hold any rulings in the case of the young soccer player and her family in Broward County, saying the constitutional issues overlap closely and the appeals court’s decision – which could come later this spring – “may materially affect the result in our case.”

The soccer family has been identified in court papers only as father Gary, mother Jessica and daughter, D.N., who at 13 was challenging Florida’s new “Fairness in Women’s Sports Act.”

It prohibits biological males from competing on female sports teams. Their lawyer said the family wants not to be identified publicly and they declined to talk about their federal lawsuit.

“Sports are such a huge part of her life,” said Jason Starr, director of litigation at the Human Rights Campaign and one of the family’s lawyers. “It provides an opportunity to develop a skill set and to experience winning and losing. It is the basis for her social circle and group.” 

The soccer player filed the lawsuit as a rising eighth grader looking to join the school soccer team when she starts high school.

Gov. Ron DeSantis, who signed the new law in June 2021, said it was intended to preserve fair opportunities for female athletes. It applies to any athletic team sponsored by a Florida public secondary school, high school, public college or university. 

The soccer player and her family initially sued DeSantis, Broward County Public Schools, the state’s high school athletic association, the state’s Education Department and its commissioner, Richard Corcoran. But earlier this month, without explanation, they dropped the governor, school district and athletic association as named defendants.

The governor had previously argued in a court filing that he was an improper party to the case, saying he was not the public official responsible for enforcing the law. 

There apparently were no confidential settlement terms related to removing DeSantis from the case. In response to a public records request for any paperwork related to the decision, the governor’s office provided only copies of the court filings already available in the case.

The case is continuing against the Education Department and Corcoran, except that U.S. District Judge Roy K. Altman temporarily stayed the case until after the appeals court rules. He gave both sides the opportunity to reopen the case seven days after the appeals decision. It’s not clear when the court will rule.

The bathroom case involves a recent high school graduate, Drew Adams, who was told he could not use the boys’ bathroom at his high school. He was born a biological female but came out as transgender in eighth grade.

Adams cut his hair short, dressed in masculine clothing, wore a chest binder to flatten his breasts and adopted the “he” and “him” pronouns. He later had gender-affirming surgery, and updated his learner’s permit and birth certificate to reflect his gender as male.

The high school considered Adams male but shortly after he started classes there – after two girls complained about his use of the boys’ bathroom – offered him the option of using stalls in the girls’ restroom or a single-stall, gender-neutral bathroom, which Adams said was humiliating.

For college athletes, the NCAA announced last month that it will update its policy to “support of a sport-by-sport approach to transgender participation that preserves opportunity for transgender student-athletes while balancing fairness, inclusion and fairness for all who participate.” 

That effectively places determination of eligibility on each sports’ national or international governing body.

Democrats in Tallahassee have already sought to overturn Florida’s new law against transgender athletes.

Sen. Gary Farmer Jr., D-Fort Lauderdale, and Rep. Kristen Aston Arrington, D-Kissimmee, have proposed bills to repeal provisions of the new statute. Both bills, SB 212 and HB 6065, are stalled in the Republican-controlled Legislature.