USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 109 of 150
A. The Majority Opinion Has Reframed This Case and Addressed the Wrong Issue.
To summarize the most relevant facts thus far: The School District’s bathroom policy separates students according to their sex assigned at birth—what it calls their “biological sex.” The policy permits students assigned female at birth to use the girls’ bathrooms and students assigned male at birth to use the boys’ bathrooms. The policy requires transgender students to use the bathrooms corresponding to their birth-assigned sex or, alternatively, a single-stall gender-neutral bathroom. The policy’s definition of “biological sex,” however, is at odds with the medical-science definition of the term, which encompasses numerous biological components, including gender identity. And the policy fails to account for the primacy of gender identity (an immutable characteristic) when a student’s biological markers of sex diverge—as they will with all transgender students because, by definition, their gender identity is different from their sex assigned at birth. So, even though at least one primary biological component of a transgender student’s “biological sex” is, for example, male, that transgender student is deemed female under the School District’s policy.
Adams has challenged the School District’s assignment of transgender students to the bathrooms of their birth-assigned sex or gender-neutral bathrooms. He wants to use the boys’ bathrooms, because those facilities align with the most important biological component of his biological sex: his gender identity. The School District’s practice of separating bathrooms by sex has never
