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Sharply divided 11th Circuit upholds Fla. school district bathroom policy

Judges in 7-4 decision upheld regulation

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(Bigstock photo)

The 11th U.S. Circuit Court of Appeals last week ruled, in a 7-4 vote, that a Florida school district did not violate the U.S. Constitution nor federal civil rights laws by requiring students to use bathrooms corresponding to their biological sex as listed on their birth records.

All seven judges in the majority were appointed by Republican presidents, including six by former President Donald Trump, while the four dissenting judges were Democratic appointees.

Because other federal appellate courts have issued previous rulings allowing a student to chose to use bathrooms based on their gender identity, an appeal to the U.S. Supreme Court is likely.

In June 2021, the high court declined to hear arguments in the earlier appeals court ruling of a former high school student who challenged his Virginia school district’s bathroom policy.

Gavin Grimm was a sophomore at Gloucester County High School when he filed a federal lawsuit against the Gloucester County School District’s policy that prohibited students from using bathrooms and locker rooms that did not correspond with their “biological gender.”

The 4th U.S. Circuit Court of Appeals in Richmond in 2016 ruled in Grimm’s favor.

The Biden administration had urged the 11th Circuit to strike down the Florida school board’s policy. The White House had no immediate comment in regard to Friday’s ruling.

The suit was brought by Drew Adams, a transgender man who sued in 2017 after being barred from using the boys’ bathroom when he attended the Allen D. Nease High School in Ponte Vedra Beach, Fla.

“This is an aberrant ruling that contradicts the rulings of every other circuit to consider the question across the country,” Tara Borelli, a lawyer with Lambda Legal representing Adams, said in a statement. “We will be reviewing and evaluating this dangerous decision over the weekend.”

In the suit Reuters reported that Adams contended that the high school’s bathroom policy violated the Constitution’s Equal Protection Clause and Title IX, which bars sex discrimination in education.

Reuters notes:

Writing for the majority, Circuit Judge Barbara Lagoa disagreed, saying the school board had an important interest in protecting students’ privacy, and calling it “wrong” to suggest it relied on illegal stereotypes of transgender people.

The Trump appointee also said Title IX allows separate bathrooms based on biological sex, citing “the plain and ordinary meaning of ‘sex’ in 1972” when that law took effect.

She also warned that ruling for Adams could “transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities. Whether Title IX should be amended to equate ‘gender identity’ and ‘transgender status’ with ‘sex’ should be left to Congress — not the courts.”

Circuit Judge Jill Pryor, an appointee of Barack Obama, countered in dissent that by forcing Adams to use gender-neutral bathrooms, the St. Johns (County) School Board branded him with a “badge of inferiority” by deeming him “unfit” for equal protection.

“The Constitution and laws of the United States promise that no person will have to wear such a badge because of an immutable characteristic,” Pryor wrote. “The majority opinion breaks that promise.”

A legal analyst told the Washington Blade the 11th Circuit’s ruling is a victory for anti-LGBTQ activists and so-called family focused conservatives who continue to push anti-LGBTQ and anti-trans legislation, including trans bathroom ban measures across the country.

Last May, Oklahoma Senate Bill 615 passed the Oklahoma legislature and was quickly signed into law by Republican Gov. Kevin Stitt. The law requires all pre-K through 12th grade public schools and public charter schools to restrict the use of multiple occupancy restrooms and other facilities at school based on the sex listed on an individual’s original birth certificate.

Provisions in the language of the law requires schools to adopt disciplinary procedures to punish students who do not comply and allows parents and guardians to take legal action against any school that does not comply with the new law.

The American Civil Liberties Union, the ACLU of Oklahoma Foundation, Lambda Legal and pro-bono co-counsel Covington and Burling LLP filed a lawsuit this past September alleging that SB 615 violates the Equal Protection Clause of the 14th Amendment and Title IX of the Education Amendments of 1972, by discriminating on the basis of sex, gender identity, and trans status. 

 

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Florida

Fla. House passes ‘Anti-Diversity’ bill

Measure could open door to overturning local LGBTQ rights protections

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(Photo by Catella via Bigstock)

The Florida House of Representatives on March 10 voted 77-37 to approve an “Anti-Diversity in Local Government” bill that opponents have called an extreme and sweeping measure that, among other things, could overturn local LGBTQ rights protections.

The House vote came six days after the Florida Senate voted 25-11 to pass the same bill, opening the way to send it to Republican Gov. Ron DeSantis, who supports the bill and has said he would sign it into law.

Equality Florida, a statewide LGBTQ advocacy organization that opposed the legislation, issued a statement saying the bill “would ban, repeal, and defund any local government programming, policy, or activity that provides ‘preferential treatment or special benefits’ or is designed or implemented with respect to race, color, sex, ethnicity, sexual orientation, or gender identity.”

The statement added that the bill would also threaten city and county officials with removal from office “for activities vaguely labeled as DEI,” with only limited exceptions.

“Written in broad and ambiguous language, the bill is the most extreme of its kind in the country, creating confusion and fear for local governments that recognize LGBTQ residents and other communities that contribute to strength and vibrancy of Florida cities,” the group said in a separate statement released on March 10.

The Miami Herald reports that state Sen. Clay Yarborough (R-Jacksonville), the lead sponsor of the bill in the Senate, said he added language to the bill that would allow the city of Orlando to continue to support the Pulse nightclub memorial, a site honoring 49 mostly LGBTQ people killed in the 2016 mass shooting at the LGBTQ nightclub.

But the Equality Florida statement expresses concern that the bill can be used to target LGBTQ programs and protections.

“Debate over the bill made expressly clear that LGBTQ people were a central target of the legislation,” the group’s statement says. “The public record, the bill sponsors’ own statements, and hours of legislative debate revealed the animus driving the effort to pressure local governments into pulling back from recognizing or resourcing programs targeting LGBTQ residents and other historically marginalized communities,” the statement says.

But the statement also notes that following outspoken requests by local officials, sponsors of the bill agreed to several amendments “ensuring local governments can continue to permit Pride festivals, even while navigating new restrictions on supporting or promoting them.”     

The statement adds, “Florida’s LGBTQ community knows all too well how to fight back against unjust laws. Just as we did, following the passage of Florida’s notorious ‘Don’t Say Gay or Trans’ law, we will fight every step of the way to limit the impact of this legislation, including in the courts.”

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Florida

Fla. Senate passes ‘Anti-Diversity’ bill that could repeal local LGBTQ protections

Bipartisan coalition urges Florida House to reject ‘extremism’ measure

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The Florida Capitol (Washington Blade photo by Yariel Valdés González)

The Florida Senate on March 4 voted 25-11 to approve an “Anti-Diversity in Local Government” bill that critics have called a sweeping and extreme measure that, among other things, could repeal local LGBTQ rights protections.

According to Equality Florida, a statewide LGBTQ advocacy organization, if approved by the Florida House of Representatives and signed by Republican Gov. Ron DeSantis, the bill “would ban, repeal, and defund any local government programming, policy, or activity that provides ‘preferential treatment or special benefits’ or is designed or implemented’ with respect to race, color, sex, ethnicity, sexual orientation, or gender identity.”

In a March 4 statement, Equality Florda added that the bill would also threaten city and county officials with removal from office “for activities vaguely labeled as DEI,” with only limited exceptions.

The Florida House was scheduled to vote on the bill on Monday, March 9, with opponents hopeful that a broad coalition of both Democratic and Republican lawmakers would secure enough votes to defeat the bill.

“Once again, Gov. DeSantis and Florida lawmakers are advancing one of the most sweeping and extreme bills in the country — this time threatening decades of local progress supporting diverse communities, including the LGBTQ community,” said Equality Florida Senior Political Director Joe Saunders. “This legislation is a sledgehammer aimed at cities and counties that recognize and address the diversity of the people they serve,” he said.

Among the LGBTQ organizations that could be adversely impacted by the bill is the highly acclaimed Stonewall National Museum, Archives and Library located in Fort Lauderdale.

Robert Kesten, the Stonewall organization’s president and CEO, told the Washington Blade the organization receives some funding from Broward County, in which Fort Lauderdale is located, and the city of Fort Lauderdale has provided support by purchasing tables at some of the museum’s fundraising events.

“Based on this legislation, hose things would be gone,” he said. “We also are based in a government building. So, we don’t know what potential side effects that could have.” He noted that the building in question is owned by Broward County and leased by Fort Lauderdale, with the bill’s vaguely worded provision making it unclear whether Stonewall would be forced to leave its building.

“It’s unknown, and we’re really in unchartered waters,” he said.

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Comings & Goings

Gil Pontes III named to Financial Advisory Board in Wilton Manors

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Gil Pontes III

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

Congratulations to Gil Pontes III on his recent appointment to the Financial Advisory Board for the City of Wilton Manors, Fla. Upon being appointed he said, “I’m honored to join the Financial Advisory Board for the City of Wilton Manors at such an important moment for our community. In my role as Executive Director of the NextGen Chamber of Commerce, I spend much of my time focused on economic growth, fiscal sustainability, and the long-term competitiveness of emerging business leaders. I look forward to bringing that perspective to Wilton Manors — helping ensure responsible stewardship of public resources while supporting a vibrant, inclusive local economy.”

Pontes is a nonprofit executive with years of development, operations, budget, management, and strategic planning experience in 501(c)(3), 501(c)(4), and political organizations. Pontes is currently executive director of NextGen, Chamber of Commerce. NextGen Chamber’s mission is to “empower emerging business leaders by generating insights, encouraging engagement, and nurturing leadership development to shape the future economy.” Prior to that he served as managing director of The Nora Project, and director of development also at The Nora Project. He has held a number of other positions including Major Gifts Officer, Thundermist Health Center, and has worked in both real estate and banking including as Business Solutions Adviser, Ironwood Financial. For three years he was a Selectman, Town of Berkley, Mass. In that role, he managed HR and general governance for town government. There were 200+ staff and 6,500 constituents. He balanced a $20,000,000 budget annually, established an Economic Development Committee, and hired the first town administrator.

Pontes earned his bachelor’s degree in political science from the University of Massachusetts, Dartmouth.

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