USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 111 of 150
components.[1] In short, the majority opinion’s definition of “biological sex” has no business driving the framing and resolution of this case.
With these truths out of the way, the majority opinion’s definition of “biological sex” permits it to declare that Adams is a biological female and that his gender identity is irrelevant to this case. See id. at 28 (arguing that “Adams’s gender identity is … not dispositive for our adjudication of [his] equal protection claim”). For all the reasons I just summarized, that is wrong.
The majority opinion’s counterfactual “biological sex” definition obscures the nuance of this case. The majority opinion invokes Supreme Court sex-discrimination cases that generally recognize “biological” differences between men and women. See, e.g., id. at 27 (“[T]he district court did not make a finding equating gender identity as akin to biological sex. Nor could the district court have made such a finding that would have legal significance. To do so would refute the Supreme Court’s longstanding recognition that ‘sex … is an immutable characteristic determined solely by the accident of birth.’” (quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973))); see also, e.g., Nguyen v. INS, 533 U.S. 53, 73 (2001) (“To fail to acknowledge even our most basic biological differences … risks making the guarantee of equal protection superficial, and
- ↑ Neither the School District nor the majority opinion even argues that any of the district court’s findings of fact are clearly erroneous—they both simply ignore them.
