Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022)/Opinion of Judge Jill Pryor

by Jill Anne Pryor

Jill Pryor, Circuit Judge, dissenting, in which Rosenbaum, Circuit Judge, joins as to Parts I, II, III.A, III.B, III.D, and IV:

Each time teenager Andrew Adams needed to use the bathroom at his school, Allen D. Nease High School, he was forced to endure a stigmatizing and humiliating walk of shame—past the boys’ bathrooms and into a single-stall “gender neutral” bathroom. The experience left him feeling unworthy, like “something that needs to be put away.” The reason he was prevented from using the boys’ bathroom like other boys? He is a transgender boy.

Seeking to be treated as equal to his cisgender boy classmates, Adams sued, arguing that his assignment to the gender neutral bathrooms and not to the boys’ bathrooms violated the promise of the Fourteenth Amendment’s Equal Protection Clause. He prevailed in the district court, and a panel of this Court, of which I was a member, affirmed. Today, a majority of my colleagues labels Adams as unfit for equal protection based on his transgender status.

To start, the majority opinion simply declares—without any basis—that a person’s “biological sex” is comprised solely of chromosomal structure and birth-assigned sex. So, the majority opinion concludes, a person’s gender identity has no bearing on this case about equal protection for a transgender boy. The majority opinion does so in disregard of the record evidence—evidence the majority does not contest—which demonstrates that gender identity is an immutable, biological component of a person’s sex.

With the role of gender identity in determining biological sex thus obscured, the majority opinion next focuses on the wrong question: the legality of separating bathrooms by sex. Adams has consistently agreed throughout the pendency of this case—in the district court, on appeal, and during these en banc proceedings—that sex-separated bathrooms are lawful. He has never challenged the School District’s policy of having one set of bathrooms for girls and another set of bathrooms for boys. In fact, Adams’s case logically depends upon the existence of sex-separated bathrooms. He—a transgender boy—wanted to use the boys’ restrooms at Nease High School and sought an injunction that would allow him to use the boys’ restrooms.

When the majority opinion reaches Adams’s equal protection claim, these errors permeate its analysis. So does another: the majority overlooks that the School District failed to carry its evidentiary burden at trial. Everyone agrees that heightened scrutiny applies. The School District therefore bore the evidentiary burden of demonstrating a substantial relationship between its bathroom policy and its asserted governmental interests. Yet the School District offered no evidence to establish that relationship.

Next, the majority opinion rejects Adams’s Title IX claim. Here, too, the majority opinion errs. Even accepting the majority opinion’s premise—that “sex” in Title IX refers to what it calls a “biological” understanding of sex—the biological markers of Adams’s sex were but-for causes of his discriminatory exclusion from the boys’ restrooms at Nease High School. Title IX’s statutory and regulatory carveouts do not speak to the issue we face here: the School District’s categorical assignment of transgender students to sex-separated restrooms at school based on the School District’s discriminatory notions of what “sex” means.

Finally, the majority opinion depicts a cascade of consequences flowing from the mistaken idea that a ruling for Adams will mean the end of sex-separated bathrooms, locker rooms, and sports. But ruling for Adams would not threaten any of these things, particularly if, as I urge here, the ruling was based on the true nature of Adams’s challenge and the School District’s evidentiary failures at trial.

In sum, the majority opinion reverses the district court without addressing the question presented, without concluding that a single factual finding is clearly erroneous, without discussing any of the unrebutted expert testimony, and without putting the School District to its evidentiary burden. I respectfully dissent.

I. BACKGROUND

I set out the factual and procedural background to this case in four parts. In this section I first discuss Adams’s status as a transgender boy; define relevant terms; and describe the substantial changes Adams has undergone socially, physically, and legally. Second, I identify the St. Johns County School District’s (the “School District”) bathroom policy and discuss alternative bathroom policies other schools have adopted. Third, I explain how the School District enforced its bathroom policy against Adams at Nease High School. Fourth and finally, I provide the procedural background of this case.

A. Adams’s Status as a Transgender Boy

Before I discuss Adams’s status as a transgender boy, I note that this case comes to us after a bench trial, at which experts, School District officials, and Adams testified. The evidence introduced at trial is relevant to the issues on appeal and matters for the parties involved in this case. And the district court’s fact-findings based on the trial evidence are entitled to deference. Indeed, the majority opinion does not challenge these findings.

From as far back as he can remember, Adams has “liv[ed] basically as a boy.” Doc. 160-1 at 189.^[1] At trial, he testified that he always engaged in what he thinks of as “masculine” behaviors. Id. at 88, 103. For example, as a child Adams played with race cars, airplanes, and dinosaurs. If he was “given a girls’ toy, it would stay primarily in its toy box.” Id. at 85. He refused to wear skirts and dresses. When he played sports as a child, he played “almost entirely” with boys. Id. at 88. Adams’s father testified, “You can go back through his whole childhood and see things like that.” Doc. 161 at 87. “[H]e just always wasn’t acting like a girl.” Id. at 87. Adams’s mother remembered his childhood the same way: “[H]e never clicked with any of the female things, the standard female stereotype things.” Doc. 160-1 at 218.

Inconsistent with Adams’s consistently “masculine” behavior was the fact that the doctor who attended Adams’s birth “assigned” him the “[f]emale” sex at birth. Id. at 83. The doctor made the assignment by briefly examining Adams’s external genitalia in the moments after birth. Still, for the first several years of his life, Adams was unperturbed by any disconnect between how he lived—as a boy—and how his first birth certificate and early medical records identified him—as a girl.

When Adams reached puberty, though, his life took a painful turn. His body began to exhibit female traits, and he “started to hate … every aspect of [his] body.” Id. at 89. At the time, Adams did not consciously associate the hatred he felt for his body with feminine characteristics specifically. But upon reflection, he “only really hated strongly the things that made [him] look more feminine; my hips, my thighs, my breasts.” Id.

Aided by his concerned and supportive parents, Adams got help. He assumed he “had a mental illness,” but he “didn’t really [know of] any particular cause” for his negative feelings. Id. at 90. He saw multiple therapists for what he assumed was only “anxiety” or “depression.” Id. After he entered therapy, Adams, his parents, and his medical providers all concluded that something else was at the root of Adams’s discontent—he was transgender. Being “transgender” meant that Adams “consistently, persistently, and insistently[] identifie[d] as a gender different [from] the sex [he was] assigned at birth.” Doc. 192 at 7 (internal quotation marks omitted).^[2] Put differently, his “gender identity”—his “internal sense of being male, female, or another gender,” id. (internal quotation marks omitted—was, and remains, that of a male. As one of Adams’s physicians and expert witnesses—Deanna Adkins, M.D., a pediatric endocrinologist at Duke University—testified at trial, a person’s gender identity cannot be changed; it is not a choice. Diane Ehrensaft, Ph.D., a clinical psychologist and expert witness for Adams echoed Dr. Adkins’s opinion, testifying that the “prevailing perspective on gender identity” is that gender identity is “an innate … effectively immutable characteristic.” Doc. 166-5 at 38 (internal quotation marks omitted). It is a “deep-seated, deeply felt component of human identity”; it “is not a personal decision, preference, or belief.” Doc. 166-3 at ¶ 22. It “appears to be related to one’s brain messages and mind functioning” and so, crucially, “has a biological basis.” Id. ¶¶ 21, 25.

Putting these concepts together, Adams is a transgender boy because his gender identity—male—is different from his birth-assigned sex—female. When a person is not transgender, meaning his or her birth-assigned sex and gender identity align, that person is “cisgender.” Doc. 192 at 7.

Upon realizing he was transgender, Adams learned why he hated the feminine parts of his own body. His psychologist diagnosed him with “gender dysphoria.” Id. at 11. Gender dysphoria “is characterized by debilitating distress and anxiety resulting from the incongruence between an individual’s gender identity and birth-assigned sex.” Id. at 7 (internal quotation marks omitted). The condition is recognized by the Diagnostic and Statistical Manual of Mental Disorders. The intensity of the negative emotion Adams felt, he would later testify, was life-threatening. Adams’s deep distress was unexceptional when compared to the mental well-being of other transgender school-age children. Tragically, “more than 50% of transgender students report attempting suicide.” Doc. 151-8 at 13. It therefore should come as no surprise that Adams and his parents sought to treat his gender dysphoria.

The World Professional Association for Transgender Health (“WPATH”) has established a standard of care for persons suffering from gender dysphoria. “Many of the major medical and mental health groups in the United States recognize the WPATH Standards of Care as representing the consensus of the medical and mental health community regarding the appropriate treatment for gender dysphoria.” Doc. 119-1 at 10. “The recommended treatment for transgender people with gender dysphoria includes assessment, counseling, and, as appropriate, social transition, puberty-blocking drug treatment, hormone therapy, and surgical interventions to bring the body into alignment with one’s gender identity.” Id. at 10–11. With the support of his parents and medical providers, Adams underwent changes to ensure his body and behaviors were aligned with his gender identity.

Adams began with social changes. Often, these social changes involve “changing your appearance, your activities, and your actions … to the gender that matches your gender identity so that everything you do from the time you get up in the morning and you go to bed at night is in that particular gender.” Doc. 166-2 at 27. For Adams, these changes included cutting his hair, wearing masculine clothing, using male pronouns to refer to himself, and wearing a chest binder—a device that gives the wearer the appearance of a flat chest.

Adams also began using the men’s restroom in public as part of his social transition. For Adams, using the men’s restroom was important because it was a “simple action” that expressed he was “just like every other boy” who could “use the men’s bathroom without thinking about it.” Doc. 160-1 at 107. Transgender individuals “typically seek privacy and discreteness in restroom use and try to avoid exposing any parts of their genitalia that would reveal sex characteristics inconsistent with their gender identity.” Doc. 192 at 8. When Adams uses the men’s restroom, he walks in, goes into a stall, locks the door to the stall, uses the restroom, leaves the stall, washes his hands, and exits the restroom.

In addition to his social transition, Adams underwent medical changes. He took birth control medication to halt menstruation. With the help of his endocrinologist, he also began to take testosterone to produce secondary sex characteristics: “increased muscle mass, increased body hair on the face, chest, and abdomen, and a deepening of the voice.” Id. at 9. Eventually, Adams had a double mastectomy to remove his breasts.

Adams pursued legal changes, too. He followed Florida’s procedure to change the sex on his driver’s license to male, which required a statement from his medical provider. He followed another procedure to change the sex on his birth certificate to male. Now, the State of Florida recognizes Adams’s sex as male.

The social, medical, and legal changes Adams underwent dramatically changed his outlook. His mother testified that the changes had an “absolutely remarkable” effect on him. Doc. 160-1 at 220. “He went from this quiet, withdrawn, depressed kid to this very outgoing, positive, bright, confident kid. It was a complete 180.” Id. Adams testified, “[L]ooking back on my life up to this point and thinking about my happiest moments, the happiest moments of my life have been big moments in my transition; when I started testosterone, when I first put on the binder, when I first saw my chest after surgery.” Id. at 107. “I don’t hate myself anymore,” he said. “I don’t hate the person I am.” Id. at 106.

B. The School District’s Bathroom Policy and Alternative Bathroom Policies Adopted by Other School Districts

There are two components that together make up the School District’s bathroom policy: (1) a longstanding unwritten policy and (2) a set of written guidelines the School District promulgated in 2012 (the “Best Practices Guidelines”). In this subsection, I begin by describing the School District’s longstanding unwritten policy. I next describe the Best Practices Guidelines. In discussing the Best Practices Guidelines, I also review evidence in the record about alternative bathroom policies adopted by other school districts. Last, I describe how the School District assigned students to the boys’ or girls’ bathrooms based on the students’ enrollment documents.

1. The Longstanding Unwritten Bathroom Policy and Its Use of the Term “Biological Sex”

The School District has long had an unwritten school bathroom policy under which boys use the boys’ restrooms, and girls use the girls’ restrooms, based on their “biological sex.” Doc. 192 at 14 (internal quotation marks omitted). “Biological sex” for purposes of the School District’s bathroom policy means birth-assigned sex—the sex a doctor assigns an infant in the moments after birth by examining the infant’s external genitalia.^[3]

Dr. Ehrensaft’s expert testimony illuminated the differences between the School District’s definition of “biological sex” and the scientific community’s biological understanding of sex. Dr. Ehrensaft testified that “[b]y the beginning of the twentieth century scientific research had established that external genitalia alone—the typical criterion for assigning sex at birth—[was] not an accurate proxy for a person’s sex.” Doc. 166-3 ¶ 20. Instead, she continued:

[M]edical understanding recognizes that a person’s sex is comprised of a number of components including: chromosomal sex, gonadal sex, fetal hormonal sex (prenatal hormones produced by the gonads), internal morphologic sex (internal genitalia, i.e., ovaries, uterus, testes), external morphological sex (external genitalia, i.e., penis, clitoris, vulva), hypothalamic sex (i.e., sexual differentiations in brain development and structure), pubertal hormonal sex, neurological sex, and gender identity and role.

Id. As with components like chromosomal sex or external morphological sex, Dr. Ehrensaft testified, gender identity is “immutable” and “has a biological basis.” Id. ¶ 25; Doc. 166-5 at 38.

After spelling out these numerous biological components of sex, Dr. Ehrensaft testified: “When there is a divergence between these factors, neurological sex and related gender identity are the most important and determinative factors” for determining sex. Doc. 166-3 ¶ 20. The School District did not offer any evidence to rebut this expert testimony.

The term “biological sex,” as used by the School District in its bathroom policy, thus does not include many of the biological components that together make up an individual’s sex as understood by medical science, including gender identity. Nor does the term “biological sex,” when used to mean only sex assigned at birth, account for the reality that the biological components of sex in an individual might diverge.^[4] And the term fails to account for the primacy of two biological components in particular, gender identity and neurological sex, when such a divergence occurs. Put simply, the term “biological sex” as used by the School District is at odds with medical science.

2. The Taskforce, the Best Practices Guidelines, and Alternative Bathroom Policies Accommodating Transgender Students

In 2012, the School District formed a taskforce to review policies related to LGBTQ students.^[5] The taskforce convened in part to consider whether the School District’s longtime bathroom policy appropriately accounted for transgender students’ desire to use the restrooms corresponding to their gender identity. As part of its work, the taskforce researched the policies of other school districts concerning their treatment of transgender students. The taskforce learned that other school districts had policies in place permitting transgender students to use the restrooms consistent with their gender identity. The taskforce did not learn of a single negative consequence for any student resulting from transgender students’ use of the restroom matching their gender identity.

At trial, Adams put on evidence of other school districts’ bathroom policies that accommodated transgender students’ desire to use restrooms matching their gender identity. For example, in Florida’s Broward County Public Schools (“BCPS”), the sixth largest school district in the nation, “[s]tudents who identify as transgender … have access to the restroom that corresponds to their gender identity.” Doc. 151-8 at 49. BCPS’s policy provides that “[w]hen meeting with the transgender student … to discuss transgender safety and care, … the principal and student address [the] student’s access to the restroom, locker room[,] and changing facility” independently, customizing the student’s access to these facilities “based on the particular circumstances of the student and the school facilities.” Id.

Addressing BCPS’s experience with concerns like safety and privacy that are sometimes voiced in opposition to such policies, BCPS official Michaelle Valbrun-Pope testified that “with 271,000 students, 300 schools, and implementation over … five years, [BCPS] ha[s] not had issues related to safety in the restrooms that are specifically connected to transgender students.” Doc. 161 at 64. And she had never heard about a single privacy concern related to transgender students using the restroom corresponding to their gender identity. Valbrun-Pope learned from her conversations with transgender students and other BCPS officials that “transgender students are not trying to expose parts of their anatomy … [t]hat do[] not align with their gender identity” and are typically discrete in using bathrooms that do not match their birth-assigned sex. Id. at 65.

A BCPS high school principal who worked district-wide on issues involving transgender students, Michelle Kefford, amplified Valbrun-Pope’s observations about the absence of safety and privacy issues arising out of BCPS’s bathroom policy. Kefford testified that she has not “heard of a case anywhere” in which a transgender student has threatened another student’s “safety or privacy” by using a restroom matching the transgender student’s gender identity. Id. at 118. She was unaware of “any child having an issue with a transgender child using the bathroom that aligns with their gender identity.” Id. Although the students themselves were unbothered by the bathroom policy, she explained, she encountered adults who expressed opposition to the policy. Kefford explained that, in her experience,

[P]eople are afraid of what they don’t understand … [and] a lot of that fear [is because] they haven’t experienced it, they don’t know enough about it, and the first thing that comes to mind is this person wants to go into this bathroom for some other purpose. That’s not the reality. The reality is this child … just want[s] to be accepted.

Id. at 119–20.

Dr. Thomas Aberli, a high school principal with another school district, the Jefferson County Public Schools (“JCPS”) in Kentucky, testified about his school’s bathroom policy as it related to transgender students. Aberli testified that, initially, he was unsure whether being transgender was “a real thing.” Doc. 160-1 at 29. But after diligent research, conversations with community members, and discussions with his staff, Aberli concluded that “being transgender was a real thing that the school would have to respond to.” Id. at 31. While he was principal, Aberli’s school adopted a policy permitting transgender students to use bathrooms aligning with their gender identity. Aberli testified that since adopting the policy, his school has experienced no privacy or security issues related to transgender students using restrooms that matched their gender identity. Although not spelled out in detail, it is clear from the record that several school districts in Florida and across the country maintain alternative bathroom policies similar to BCPS’s and the one at Aberli’s high school.

Notwithstanding its knowledge of the success in other school districts of bathroom policies that permitted transgender students to use school bathrooms consistent with their gender identity,^[6] the taskforce rejected such a policy for St. Johns County. The leader of the taskforce, Sallyanne Smith, explained why at trial:

[W]hen a girl goes into a girls’ restroom, she feels that she has the privacy to change clothes in there, to go to the bathroom, to refresh her makeup. They talk to other girls. It’s kind of like a guy on the golf course; the women talk in the restrooms, you know. And to have someone else in there that may or may not make them feel uncomfortable, I think that’s an issue we have to look at. It’s not just for the transgender child, but it’s for the [cisgender students].

Doc. 161 at 213. Smith testified that the taskforce also was concerned about how a change in the policy might apply to genderfluid students—students “whose gender changes between male and female.” Doc. 192 at 17^[7]:

There’s another population of people that we learned [about] at the conference, it’s called gender fluid, and some days they feel they’re a boy and some days they feel they’re a girl. So potentially a boy could come, the football quarterback could come in and say I feel like a girl today and so I want to be able to use the girls’ room.

Doc. 161 at 213.

Other members of the taskforce and School Board witnesses echoed these concerns. The Deputy Superintendent for Operations of the School District, Cathy Ann Mittelstadt, testified that “if someone [has] to go [to the restroom] and perhaps undress or clean up a stain on their clothing … , they ha[ve] that opportunity to enter that area and receive that privacy.” Id. at 248. Frank D. Upchurch, III, a long-time School District attorney, testified that the bathroom policy probably prevented “people with untoward intentions” from “do[ing] things they ought not do.” Doc. 162 at 112. To summarize the evidence at trial, witnesses representing the taskforce and the School District voiced two concerns with permitting transgender students to use the restrooms matching their gender identity: student privacy and student safety.

At the conclusion of its work, the taskforce produced the Best Practice Guidelines, which were then adopted by the School District. The Best Practices Guidelines address transgender students specifically, providing that “[t]ransgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.” Doc. 152-6 at 1. Apart from offering gender-neutral bathrooms to transgender students as an alternative, the Best Practices Guidelines did nothing to alter the longstanding bathroom policy of assigning students to bathrooms corresponding to their birth-assigned sex, commonly determined by the appearance of their external genitalia immediately after birth.

3. The Enrollment Process

The School District administered its bathroom policy through its enrollment process. To enroll at a St. Johns County school, a student had to provide paperwork, including state health forms and a birth certificate. Students’ enrollment paperwork determined their “biological sex” for the purposes of the bathroom policy. Even “[i]f a student later present[ed] a document, such as a birth certificate or driver’s license, which list[ed] a different sex, the original enrollment documents [would] control.” Doc. 192 at 14. But if a transgender student transitioned and had the necessary paperwork altered before enrolling in a St. Johns County school, that student could use a “restroom matching his or her gender identity … and the [School Board] would be none the wiser.” Id. at 22.

The district court summarized the School District’s bathroom policy, including how it assigned students to the boys’ or girls’ bathrooms at the time Adams attended Nease High School:

“[B]iological boys” may only use boys’ restrooms or gender-neutral single-stall bathrooms and “biological girls” may only use girls’ restrooms or gender-neutral single-stall bathrooms, with the terms “biological boys” and “biological girls” being defined by the student’s sex assigned at birth, as reflected on the student’s enrollment documents.

Id. at 19.

C. Adams’s Experience at Nease High School

The summer before he entered Nease High School, Adams was already “present[ing] as a boy.” Doc. 192 at 25. He wore his chest binder, kept his hair cut short, dressed in boys’ clothing, and went by male pronouns. He used men’s restrooms in public. But because Adams had enrolled in the School District in fourth grade, his enrollment documents reflected he was “female.” Id. at 24. The School District’s bathroom policy therefore assigned him to the girls’ restrooms and gave him the option to use the gender-neutral restrooms.

Adams’s mother contacted Nease High School before the school year began to tell the school that Adams would be entering the freshman class as a boy. To help affirm his gender identity, and as required under the Best Practices Guidelines when a student or parent makes a request, Adams’s classmates and teachers used male pronouns to refer to him. And when Adams began his freshman year at Nease, he used the boys’ restrooms. There is no evidence to suggest that any fellow occupant of the boys’ restroom was bothered by, or even noticed, Adams’s presence there.

But about six weeks after Adams started ninth grade, two anonymous female students complained to school authorities that they saw Adams entering the boys’ restroom. After the female students complained, Adams was called over the school’s intercom system to report to the school office. When he arrived in the school office, three adults were waiting for him. One of them, a guidance counselor, told Adams that there had been an anonymous complaint about his using the boys’ bathroom and that he could no longer use it. The guidance counselor instructed Adams to use the gender-neutral bathroom or the girls’ bathrooms.

Adams was humiliated. He could not use the girls’ restrooms. “[J]ust thinking about” doing that caused him a great deal of “anxiety.” Doc. 160-1 at 118. Indeed, the district court found the school’s suggestion that Adams could use the girls’ restrooms “disingenuous.” Doc. 192 at 28 n.30. Adams had “facial hair,” “typical male muscle development,” a flat chest, and had a “voice … deeper than a girl’s.” Id. at 66. He also wore his hair short and dressed in boys’ clothing. Teachers and students at Nease High School treated Adams like any other boy in every other respect. “It would seem that permitting [Adams] to use the girls’ restroom would be unsettling for all the same reasons the School District does not want any other boy in the girls’ restroom,” the district court found. Id. at 28 n.30. In reality, the School District left Adams with only one option: he had to use the gender-neutral restrooms while at school.

Nease is a large school comprising multiple buildings, and some of its gender-neutral bathrooms are “considerably f[a]rther away than the boys’ restrooms,” depending upon where a student’s classes are located.^[8] Id. at 26. As a result, Adams had to “walk past [the] men’s room” to the gender-neutral restroom in what he called “humiliating” “walk[s] of shame.” Doc. 160-1 at 117, 204. Even on days when there were “not very many people in the hallway,” Adams testified, it felt like “a thousand eyes” were watching him as he walked past the boys’ restroom to make his way to a gender-neutral restroom. Id. at 204. The experience of being forced to use the gender-neutral restrooms, Adams testified, sent the message that he was “[un]worthy of occupying the same space as [his] classmates.” Id. The School District’s enforcement of the policy against Adams made him feel inferior. In his words, it:

ma[de] a statement … to the rest of the people at the school that I’m somehow different or I’m somehow separate or I’m something that needs to be separate; that I’m something that needs to be put away and not in the commonplace and not in with the rest of the student body.

Id. at 117.

D. Procedural History

After his sophomore year at Nease, Adams filed this lawsuit against the School Board. Adams claimed that his exclusion as a transgender boy from the boys’ restrooms at Nease violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. The district court held a three-day bench trial. In a 70-page opinion containing its findings of fact and conclusions of law, the district court ruled for Adams on both claims. The district court awarded Adams $1,000 in compensatory damages and enjoined the School Board of St. Johns County from barring Adams from using the boys’ restrooms at Nease.

The School Board appealed. A panel of this Court affirmed the district court’s judgment on both the equal protection and Title IX claims with one member of the panel writing in dissent. See Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty. (Adams I), 968 F.3d 1286 (11th Cir. 2020). A member of the Court then withheld the mandate. The panel majority sua sponte withdrew its opinion and issued a revised majority opinion over another dissent. See Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty. (Adams II), 3 F.4th 1299 (11th Cir. 2021). The revised panel opinion affirmed the district court’s judgment on narrower grounds in an effort to gain broader consensus among members of the Court. Id. at 1304. A member of the Court nevertheless continued to withhold the mandate.

A majority of the Court then voted to rehear Adams’s case en banc. Our en banc proceedings resulted in the above majority opinion. The majority opinion vacates Adams II, rejects Adams I, vacates the district court’s judgment, and reverses the district court on Adams’s equal protection and Title IX claims.

II. STANDARD OF REVIEW

Following a bench trial, we review a district court’s findings of fact for clear error and its conclusions of law de novo. See Compulife Software Inc. v. Newman, 959 F.3d 1288, 1301 (11th Cir. 2020). A factual finding is clearly erroneous only if in examining the record and commensurate finding we are “left with the definite and firm conviction that a mistake has been made.” In re Stanford, 17 F.4th 116, 121 (11th Cir. 2021) (internal quotation marks omitted). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Wallace v. NCL (Bahamas) Ltd., 733 F.3d 1093, 1100 (11th Cir. 2013) (internal quotation marks omitted).

III. DISCUSSION

My analysis proceeds in four parts. First, I clarify the question before the Court and highlight an error permeating the majority opinion—its counterfactual use of the term “biological sex.” Second, I address Adams’s equal protection claim. Third, I discuss Adams’s Title IX claim. Fourth, I explain why the School District’s slippery slope arguments and concerns about the lack of a limiting principle are unfounded.

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 been at issue. To the contrary, Adams’s claim depends on the existence of sex-separated bathrooms.

Refusing to engage with the record or with the actual question on appeal, the majority opinion reframes this case to its liking. It declares that “biological sex” is “sex based on chromosomal structure and anatomy at birth.” Maj. Op. at 3. From this ipse dixit, the majority easily decides that gender identity is entirely separate from “biological sex,” that Adams is “a biological female,” that the Supreme Court has long relied on “biological sex” to distinguish between men and women in its sex-discrimination jurisprudence, and that this case has to be about the legality of sex-separated bathrooms because it is only about this narrow definition of “biological sex.” These are but smoke and mirrors.

The majority opinion’s definition of “biological sex” is untethered to anything in this case. It is not the definition the School District has employed. It is most certainly not the definition established by the unrebutted expert testimony in the record. It ignores the unrefuted evidence that gender identity is an immutable, biological component of sex, not something entirely separate. And it ignores the unrefuted evidence that birth-assigned sex and chromosomal structure take a back seat in determining a person’s sex when that person’s gender identity diverges from those two components.^[9] 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 so disserving it.”). None of the principles in the cases the majority opinion cites is at issue, though. This case deals with a preliminary issue—what it means to be biologically male or female “by the accident of birth,” Frontiero, 411 U.S. at 686—and, more importantly, with an issue these cases did not address—the rights of transgender people. No matter how many times the majority says otherwise, this case is not simply about whether there are differences between men and women.

The majority opinion uses the above counterfactuals to reframe the primary issue in this case from whether the bathroom policy discriminates against transgender students to the legality of sex-separated bathrooms. See Maj. Op. at 11 (“We disagree with Adams’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students.” (emphasis added)). But Adams’s case is not about that.

Adams’s position in this litigation—from his operative complaint through these en banc proceedings—has always been that his exclusion, as a transgender boy, from the boys’ restrooms at Nease High School violated the Equal Protection Clause and Title IX. He sought an injunction that would permit him to use the boys’ restrooms at school. Far from wanting to eliminate sex-separated bathrooms, Adams’s case logically depends on their existence: he simply wanted to use the boys’ restrooms. See Appellee’s En Banc Br. at 22 (“Defendant’s policy of separating boys and girls in restrooms … is not at issue … . Instead, [Adams] challenges Defendant’s decision to treat him differently from other boys[.]”). This case is, and always has been, about whether Adams’s exclusion from the boys’ bathrooms under the School District’s bathroom policy violated the Equal Protection Clause or Title IX. See Doc. 192 at 47 (“This case is not about eliminating sex separate bathrooms; it is only about whether to allow a transgender boy to use the boys’ bathroom.”). It is not, and has never been (again, no matter how many times the majority opinion says it), about whether the School District can maintain separate bathrooms for boys and girls.

A hallmark of the federal judiciary is its passive nature—we only decide the issues presented to us by the parties. See The Federalist No. 78 (Alexander Hamilton) (asserting that “the judiciary … will always be the least dangerous [branch of government]” because it “can take no active resolution” of social issues). As part of our commitment to remain “neutral arbiter[s] of matters the parties present,” we follow the party presentation principle and “rely on the parties to frame the issues for decision.” United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (internal quotation marks omitted). We “wait for cases to come to [us], and when cases arise,” we “normally decide only questions presented by the parties.” Id. (internal quotation marks omitted) (alteration adopted). We do not enter the fray uninvited to weigh in on divisive issues. Yet that is exactly what the majority does.

In sum, two errors permeate the majority opinion, infecting the entirety of its analysis. First, 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. Second, and based on the first error, the majority opinion addresses itself to answering the wrong question. In the sections that follow, I answer the questions presented—whether Adams’s exclusion from the boys’ restrooms at Nease High School violated the Equal Protection Clause of the Fourteenth Amendment and Title IX. In my analysis, I rely on the district court’s findings of fact and the evidence in the record. I conclude that the School District’s discriminatory exclusion of Adams from the boys’ restrooms violated both the Equal Protection Clause and Title IX.

B. Adams’s Exclusion from the Boys’ Restrooms Under the Bathroom Policy Violated the Equal Protection Clause.

I begin with Adams’s equal protection claim. The Fourteenth Amendment provides: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).^[10] State-sanctioned differential treatment is a “classification” in equal-protection terms.

There are three tiers of “scrutiny” we apply when analyzing equal protection claims. If the state^[11] has made a classification based on race, we apply strict scrutiny. See Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). “Laws or regulations almost never survive” our exacting analysis under this test. Otto v. City of Boca Raton, 981 F.3d 854, 962 (11th Cir. 2020). If the classification is based on sex, we apply heightened scrutiny, under which the state must provide an “exceedingly persuasive justification” for the classification. United States v. Virginia, 518 U.S. 515, 531 (1996) (internal quotation marks omitted). Other classifications are benign, and to those we apply “rational basis” review. Under rational basis review, the law or policy will be upheld if it is “rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440.

I analyze Adams’s equal protection claim in three parts. First, I show that the School District’s bathroom policy facially discriminates against transgender students.^[12] Second, I offer two alternative reasons why heightened scrutiny applies. Third, I explain why the school bathroom policy of assigning children to a bathroom based only on their birth-assigned sex does not pass heightened scrutiny.

1. The Bathroom Policy Facially Discriminates Against Transgender Students.

Even though part of the School District’s bathroom policy is unwritten, its substance is not in dispute. The district court found that the policy “[i]ncorporat[ed] both” (1) “the long-standing unwritten School Board bathroom policy” and (2) “the Best Practices Guidelines.” Doc. 192 at 19. All agree that the first component—the longstanding policy—provides that “only ‘biological boys’ may use the boys’ restroom and … only ‘biological girls’ may use the girls’ restroom.” Id. at 19 n.24. All agree that the second component—the Best Practices Guidelines—provides that “[t]ransgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.” Doc. 152-6 at 1.

Taking these findings together, two critical properties of the policy jump out. First, the bathroom policy singles out transgender students on its face. The Best Practices Guidelines provide that “transgender students” may use gender neutral restrooms and do not have to use the restrooms matching their birth-assigned sex. Second, in addition to referring to transgender students expressly, the bathroom policy categorically deprives transgender students of a benefit that is categorically provided to all cisgender students—the option to use the restroom matching one’s gender identity.

Let me explain this second point. The bathroom policy assigns “biological boys’” to boys’ restrooms, and “biological girls” to girls’ restrooms. The policy is exclusive in that only “biological boys”—those assigned male at birth—may use the boys’ restroom, and only “biological girls”—those assigned female at birth—may use the girls’ restroom. Recall that “transgender” persons “consistently, persistently, and insistently identif[y] as a gender different [from] the sex they were assigned at birth.” Doc. 192 at 7 (internal quotation marks omitted). If transgender students are “biologically female” under the policy, their gender identity is necessarily male, and vice versa. It follows that the School District’s bathroom policy facially bans all transgender students from using the restrooms corresponding to their gender identity.

In contrast to transgender students, all cisgender students are permitted to use the restroom matching their gender identity. The policy, therefore, facially discriminates against transgender students by depriving them of a benefit that is provided to all cisgender students. It places all transgender students on one side of a line, and all cisgender students on the other side. The School District cannot hide beyond facially neutral-sounding terms like “biological sex.” As the Supreme Court has observed, “neutral terms can mask discrimination that is unlawful.” Nguyen, 533 U.S. at 64.

The majority opinion contends that there is a “lack of identity” problem here, citing the fact that the School District’s classifications of “biological males” who may use the boys’ restrooms and “biological females” who may use the girls’ restrooms both contain transgender students. Maj. Op. at 30–31 (citing Geduldig v. Aiello, 417 U.S. 484 (1974)). I do not see it that way. The School District’s policy facially discriminates against transgender students; thus, the class we are concerned with is transgender students. On one side of the policy’s line, cisgender students may use the bathrooms corresponding with their gender identities. On the other side of the line, transgender students may not. The majority opinion, in concluding otherwise, overlooks that under the policy only transgender students are denied the benefit of using the restrooms corresponding to their gender identities. Unlike in Geduldig, no “benefits of the [policy] accrue to” transgender students. 417 U.S. at 496 n.20.

Because the bathroom policy facially discriminates against transgender students, I next ask what implications that classification carries for the Equal Protection Clause—namely, what level of scrutiny is appropriate given the bathroom policy’s classification of transgender versus cisgender students.

2. The Bathroom Policy Contains a Sex-Based Classification, Triggering Heightened Scrutiny.

This case presents a cornucopia of different and sometimes overlapping theories for why the bathroom policy’s classification between transgender and cisgender students is a “sex-based classification.” Adams presents us with at least six theories.^[13] The School District and the majority opinion rely on a seventh.^[14]

Although the majority and I agree that heightened scrutiny applies to the bathroom policy, the majority opinion’s decision to apply heightened scrutiny is based on its misconception that Adams challenges the legality of sex-separated bathrooms. In the majority opinion’s view, a policy providing for sex-separated bathrooms triggers heightened scrutiny. Because Adams never challenged the legality of sex-separated bathrooms and instead challenged his exclusion from the boys’ restroom based on his status as a transgender boy, it is necessary to view this case through that lens and therefore ask whether the policy requiring Adams’s exclusion from the boys’ restroom triggers heightened scrutiny. Next, I flesh out two of Adams’s theories for why heightened scrutiny applies.

i. Heightened Scrutiny Applies under Bostock v. Clayton County’s Rationale.

One of Adams’s theories is that his exclusion from the boys’ restroom was “based on sex” under the logic of Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Appellee’s En Banc Br. at 31. Bostock did not purport to answer any constitutional question. Instead, it interpreted Title VII by exploring the language and meaning of the statute as originally enacted. But that surface-level distinction is of no moment, Adams argues, because it is Bostock’s logic—apart from any Title VII-specific language—that requires us to find there has been a sex-based classification here. I agree with Adams’s reading of Bostock.

In Bostock, the Supreme Court considered whether Title VII barred employers from firing employees because they were gay or transgender. See Bostock, 140 S. Ct. at 1737. The Supreme Court began with the text of Title VII, which prohibits discrimination in employment “because of … sex.” Id. at 1738 (citing 42 U.S.C. § 2000e-2(a)(1)). Because the parties “concede[d] the point for argument’s sake,” the Supreme Court assumed, but did not decide, that the term “sex” in the statute “refer[ed] only to the biological distinctions between male and female.” Id. at 1739. In making that assumption, the Supreme Court assumed that the term “sex” did not encompass a person’s status as transgender or homosexual, separate and apart from his or her status as “male” or “female.” Id.

Even with these assumptions about the scope of “sex,” the Supreme Court concluded that Title VII prohibits employers from firing employees “because” they are transgender. Why? “[B]ecause it is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex.” Id. at 1741. The Supreme Court explained that “[w]hen an employer fires an employee because she is … transgender, two causal factors [are] in play—both the individual’s sex and something else (the sex … with which the individual identifies).” Id. at 1742. For this reason, the Court observed, discrimination based on transgender status was “inextricably bound up with sex” and thus proscribed by Title VII. Id.

Although Bostock is a Title VII case, Bostock’s reasoning maps onto Adams’s exclusion from the boys’ restrooms at Nease High School. Adams was excluded for one of two reasons: either because the School District concluded that (1) Adams was a “biological girl” or (2) Adams was not a “biological boy.” Either way, Adams was barred from the boys’ restrooms based on a reason “inextricably bound up with sex.” Id. In excluding Adams from a state-controlled space for a reason “inextricably bound up with sex,” the School District made a sex-based classification. See id.; Virginia, 518 U.S. at 530–31 (finding that policy of excluding women from the Virginia Military Institute was a sex-based classification requiring the application of heightened scrutiny); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982) (concluding that policy of excluding men from nursing school required the application of heightened scrutiny). Heightened scrutiny applies because Adams’s exclusion from the boys’ restrooms at Nease was “based on sex” under Bostock’s logic.

ii. Heightened Scrutiny Applies Because Adams Is a Member of a Quasi-Suspect Class.

Adams also argues that his exclusion from the boys’ restrooms was “based on his transgender status.” Appellee’s En Banc Br. at 33. Here, Adams contends that transgender individuals form a quasi-suspect class.^[15] When a state statute or policy makes a classification based on a “quasi-suspect class,” courts apply heightened scrutiny as we would for a sex-based classification. See Cleburne, 473 U.S. at 440–42.

Courts consider four factors in determining whether a group constitutes a quasi-suspect class. First, we ask whether the group historically has been subjected to discrimination. See Lying v. Castillo, 477 U.S. 635, 638 (1986). Second, we look at whether the group has a defining characteristic that “frequently bears no relation to [the] ability to perform or contribute to society.” City of Cleburne, 473 U.S. at 440–41 (citation omitted). Third, we consider whether the group has “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Lying, 477 U.S. at 638. And fourth, we review whether the group is a minority lacking in political power. See Bowen v. Gilliard, 483 U.S. 587, 602 (1987). Applying these factors here, I have no doubt that Adams, as a transgender individual, is a member of a quasi-suspect class.

The first factor—whether the class historically has been subject to discrimination—weighs heavily in favor of concluding that transgender individuals make up a quasi-suspect class. The district court found there was “a documented history of discrimination against transgender individuals.” Doc. 192 at 8 n.15. For instance, transgender people “are frequently harassed and discriminated against when seeking housing or applying to jobs or schools and are often victims of violent hate crimes.” Doc. 115-10 at 2.^[16] They “experience … disproportionate rate[s]” of homelessness, unemployment, and job discrimination” as well as “disproportionately report income below the poverty line.” Id. (internal citations omitted);^[17] see Doc. 114-6 at 13 (U.S. Commission on Civil Rights report noting “extensive[] document[ation of] … a long, serious, and pervasive history of official and unofficial employment discrimination” by public and private employers).^[18] Even as children, the district court found, transgender individuals “face[] discrimination and safety concerns.” Doc. 192 at 8. And “[s]eventy-five percent of transgender students report feeling unsafe at school.” Doc 115-2 at 2.^[19]

Other circuits have observed that transgender individuals are disproportionally victims of discrimination and violence. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020) (observing that transgender individuals have historically been subjected to discrimination); Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017) (reviewing “alarming” statistics that document the “discrimination, harassment, and violence” faced by transgender individuals). Evidence abounds that transgender individuals have historically been, and continue to be, subjected to discrimination.^[20] Thus, the first factor weighs in favor of finding that transgender individuals form a quasi-suspect class.

For the second factor, we determine whether the defining characteristic of the class frequently bears no relation to the class’s ability to contribute to society. At trial, Dr. Adkins offered unrebutted expert testimony that being transgender did not limit a person’s “ability to function in society.” Doc. 166-2 at 13. Dr. Ehrensaft testified similarly that transgender individuals “have the same capacity for happiness, achievement, and contribution to society as others.” See Doc. 166-3 ¶ 32. Transgender individuals “live in every state, serve in our military, and raise children.” Medical, Mental Health, and Other Health Care Organizations Amicus Br. at 5. “Being transgender … implies no impairment in judgment, stability, reliability, or general social or vocational capabilities[.]” Doc. 115-10 at 2. The Fourth Circuit likewise concluded that one’s status as transgender bears “no such relation” to one’s “ability to perform or contribute to society.” Grimm, 972 F.3d at 612 (internal quotation marks omitted). The second factor, too, points to the conclusion that transgender individuals constitute a quasi-suspect class.

Now to the third factor—whether there are “obvious, immutable, or distinguishing characteristics” that define the class as a discrete group. Here again, the record contains unrebutted expert testimony from Dr. Atkins that, for transgender individuals, gender identity is not “a choice” and that it is not “voluntary.” Doc. 166-2 at 12–13. Dr. Ehrensaft similarly testified that gender identity is an “innate,” effectively “immutable” characteristic for transgender individuals. See Doc. 166-3 ¶ 26. The School District does not challenge any of the evidence establishing that one’s status as a transgender person is born of immutable characteristics. The third factor thus weighs in favor of concluding that transgender individuals are a quasi-suspect class. See also Grimm, 972 F.3d at 612–13 (concluding that the third factor supports the existence of a quasi-suspect class of transgender individuals).

Fourth and finally, we must determine whether transgender individuals are a minority class lacking in political power. The district court found that “0.6 percent of the adult population” is transgender. Doc. 192 at 7. Even when we take into account the small proportion of the population transgender individuals comprise, they are underrepresented in political and judicial office nationwide. See Grimm, 972 F.3d at 613 (observing that “[e]ven considering the low percentage of the population that is transgender, transgender persons are underrepresented in every branch of government”). Plus, as I noted in discussing the first quasi-suspect-class factor, the district court found that “there is a documented history of discrimination against transgender individuals.” Doc. 192 at n.15. In support, the district court cited Adams’s filing identifying numerous examples of governmental discrimination against transgender individuals—for example, a 2017 Presidential directive excluding transgender people from open service or accession in the United States armed forces and a North Carolina law that blocks local governments from passing anti-discrimination rules that grant protections to transgender individuals. No group with any political power would allow this type of purportedly legalized discrimination against it. See Grimm, 972 F.3d at 613 (“[E]xamples of discrimination cited under the first factor affirm what we intuitively know: Transgender people constitute a minority that has not yet been able to meaningfully vindicate their rights through the political process.”). The fourth factor likewise breaks heavily in favor of concluding that transgender individuals constitute a quasi-suspect class.

Like the Fourth Circuit in Grimm, I have no trouble concluding that transgender individuals constitute a quasi-suspect class. Adams’s transgender status provides an alternative reason why heightened scrutiny applies.

3. The Policy Does Not Survive Heightened Scrutiny.

I turn now to why the School District’s bathroom policy fails heightened scrutiny. Under the heightened scrutiny test, a sex classification “fails unless it is substantially related to a sufficiently important governmental interest.” City of Cleburne, 473 U.S. at 441 (citing Hogan, 458 U.S. at 721). “[T]he means adopted … [must be] in substantial furtherance of important governmental objectives. The fit between the means and the important end [must be] ‘exceedingly persuasive.’” Nguyen, 533 U.S. at 70 (quoting Virginia, 518 U.S. at 533). “The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions … .” Hogan, 458 U.S. at 725–26. “The burden of justification is demanding and it rests entirely” on the School District. Virginia, 518 U.S. at 533. As the defender of the sex-based classification, the School Board must demonstrate that its bathroom policy (1) advances an important governmental interest and (2) is in substantial furtherance of that interest. Hogan, 458 U.S. at 724.

i. The School District Presented No Evidence that the Policy Substantially Furthers Its Interest in Protecting Student Privacy.

The School District first asserts that the bathroom policy advances the important governmental interest of student “privacy.” The majority opinion defines the privacy interest this way: “The privacy interests hinge on using the bathroom away from the opposite sex and shielding one’s body from the opposite sex.” Majority Op. at 24. The Supreme Court has recognized a legitimate government interest in protecting the bodily privacy of students. Virginia, 518 U.S. at 550 n.19 (“Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements[.]”). I agree with the majority opinion that the first Hogan factor is satisfied—the School Board’s asserted interest of student “privacy” is a sufficiently important interest to pass heightened scrutiny.

It is on the second factor—whether the bathroom policy is “substantially related” to the asserted governmental interest—that I part ways with the majority opinion. I have four reasons.

First, the majority opinion ignores that the School District failed to introduce any nonspeculative evidence on this point. When it comes to defending a sex-based classification, we are in the business of relying on evidence, not speculation. Nguyen, 533 U.S. at 70; see Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993) (observing that there is an “extensive evidentiary showing” required for a classification “to survive heightened scrutiny”). “[S]heer conjecture and abstraction” will not do. Whitaker, 858 F.3d at 1052.

The only evidence the School District provided to link its legitimate privacy interest with the policy of assigning transgender students to the bathrooms corresponding with their birth-assigned sex was speculative in nature. Smith, the leader of the taskforce that produced the Best Practices Guidelines, explained that “a girl … refresh[ing] her makeup” in the bathroom might not want “someone else in there [who] may or may not make them feel uncomfortable.” Doc. 161 at 213. I assume this statement articulates, however inartfully, a legitimate privacy interest. But Smith then speculated—without any evidence to support her supposition—that the mere presence of, or example, a transgender girl could make a cisgender girl feel as uncomfortable in the bathroom as she might be in the presence of a cisgender boy. Similarly, the School District’s Deputy Superintendent for Operations, Mittelstadt, opined that the policy of assigning transgender students to the bathrooms of their birth-assigned sex made sense because “if [a cisgender student] [has] to go [to the restroom] and perhaps undress or clean up a stain on their clothing … , they [should] ha[ve] that opportunity to enter that area and receive that privacy.” Id. at 248. I agree with the district court that generalized guesses about how school-aged cisgender students may or may not feel with transgender students in the bathroom is not enough to carry the heavy weight of heightened scrutiny. The School District’s failure to carry its evidentiary burden, standing alone, is reason enough to affirm the district court’s judgment on Adams’s equal protection claim.

Second, the majority opinion fails to contend with the evidence regarding how transgender students typically use the restroom. The majority opinion asserts that the privacy interest at issue involves “shielding one’s body from the opposite sex.” Majority Op. at 24. The record reflects, however, that transgender individuals are discrete in using the restroom aligning with their gender identity. As a general matter, transgender students wish to shield parts of their anatomy that would identify them as belonging to their birth-assigned sex. And with respect to Adams specifically, the district court found that he always uses a stall, locks the door to the stall, uses the restroom, leaves the stall, washes his hands, and exits the restroom. In response to this evidence, the majority opinion deflects, saying that the privacy right at issue here is different from “using the bathroom in priva[te].” Id. Rather, the majority opinion says, there is some abstract student privacy interest that requires students to use restrooms according to birth-assigned sex.

Herein lies the third problem for the majority opinion—Adams’s evidence that the bathroom policy’s assignment of Adams to the girls’ restrooms would actually undermine the abstract privacy interest the School District wished to promote. While he attended Nease and was excluded from the boys’ bathrooms, Adams had “facial hair,” “typical male muscle development,” a deep voice, and a short haircut. Doc. 192 at 66. He had no visible breast tissue; his chest appeared flat. He wore masculine clothing. Any occupant of the girls’ restroom would have seen a boy entering the restroom when Adams walked in. Thus, the district court found, “permitting him to use the girls’ restroom would be unsettling for all the same reasons the School District does not want any other boy in the girls’ restroom.” Id. at 28 n.30. In other words, the evidence showed that a transgender boy walking into the girls’ restroom would undermine the sense of privacy for all involved.^[21] The policy therefore lacks “fit” with the asserted privacy interest because by assigning students who identify as and appear to be male to the girls’ restroom and students who identify as and appear to be female to the boys’ bathroom, the policy is drastically underinclusive with respect to its stated purpose. See Friedman v. Harold, 638 F.2d 262, 269 (1st Cir. 1981) (observing in dicta that a state law prohibiting creditors of a wife from attaching her interest in a tenancy by the entirety but permitting creditors of a husband to attach his interest would not survive intermediate scrutiny because the law’s “limitation to only one half of the relevant situations [wives but not husbands] renders it dramatically underinclusive as a means of attaining [the] end” of protecting the interests of innocent non-debtor spouses in property held by the entirety, and thus “presents such a sharp and dramatic lack of fit between means and ends as to suggest that no such purpose was intended”).

Fourth, and finally, evidence in the record that cisgender students were permitted to use the gender-neutral bathrooms further undermines any notion that there is an “exceedingly persuasive” connection between the School District’s privacy interest and its policy banning transgender students from the bathrooms that align with their gender identities. Nguyen, 533 U.S. at 70 (internal quotation marks omitted). BCPS official Kefford and task force director Smith both testified at trial that gender-neutral, single-stall bathrooms had long been used by cisgender students who needed “extended,” or “additional privacy.” Doc. 161 at 101–02, 149. Based on this testimony, the district court found—and the majority opinion does not dispute—that the gender-neutral bathrooms were a way to “accommodate[] the occasional student who needed additional privacy” for any number of reasons. Doc. 192 at 15 n.20 (emphasis added). The fact that, by the School District’s own admission, the gender-neutral single-stall bathrooms provide more privacy than the bathrooms that separate students by biological sex undermines the District’s asserted privacy interest in keeping transgender students from the bathrooms that align with their gender identities because their inclusion might theoretically create privacy problems for a cisgender student who is, for example, “undress[ing] or clean[ing] up a stain on their clothing.” Doc. 161 at 248; cf. Hogan, 458 U.S. at 730–31 (explaining that school’s policy of permitting men to attend all-women’s nursing school classes as auditors “fatally undermines its claim that women … are adversely affected by the presence of men” in the classroom).

For all these reasons, the School District failed to carry its evidentiary burden to establish a “substantial relationship” between the bathroom policy and student privacy.

ii. The School District Presented No Evidence that the Policy Substantially Furthers Its Interest in Keeping Students Safe.

The School District likewise failed to produce any evidence showing a “substantial relationship” between its policy and student safety, either for Adams as a transgender student or for cisgender students using school bathrooms. Hogan, 458 U.S. at 725. Tellingly, the majority opinion does not rely on student safety as sufficient justification for the policy.

As an initial matter, the School District’s brief does not adequately explain what it means by “student safety.” Is it referring to transgender students’ safety? The safety of cisgender students? Or both? Is it suggesting that a transgender boy’s presence in the boys’ restroom makes it more unsafe for cisgender boys than when the boys’ restroom contains only cisgender boys, for example? The School District leaves us to guess. It makes a few conclusory and passing references to “student safety” in its en banc brief without pointing to any evidence, citing any case law, or otherwise explaining how the bathroom policy furthers student safety. Instead, it seems to rely only on stereotypes and assumptions.

But even if the School District had done a better job of explaining in its brief on appeal, the evidentiary record would still be bare. “Any predictive judgments concerning group behavior and the differences in behavior among different groups must at the very least be sustained by meaningful evidence.” Lamprecht v. FCC, 958 F.2d 382, 393 (D.C. Cir. 1992) (Thomas, J.). As our sister circuit has recognized, a “sex-based classification cannot survive unless the ‘sex-centered generalization’ asserted in the law’s defense ‘actually comports with fact’ and is not ‘too tenuous.’” Lamprecht, 958 F.3d at 393 n.3 (alteration adopted) (quoting Craig v. Boren, 429 U.S. 190, 199, 204 (1976)); see Craig, 429 U.S. at 201–02 (rejecting maleness as a proxy for drinking and driving because a correlation of 2 percent was “unduly tenuous”). Upchurch, a School District witness, vaguely guessed that the bathroom policy probably prevented “people with untoward intentions” from “do[ing] things they ought not do.” Doc. 162 at 112. The district court found this speculation insufficient to carry the burden of heightened scrutiny. It further observed that “[t]here was no evidence that Adams encountered any safety concerns during the six weeks he used the boys’ restroom at Nease or when he does so in other public places.” Doc. 192 at 43. And there was no evidence that “Adams present[ed] any safety risk to other students or that transgender students are more likely than anyone else to assault or molest another student in the bathroom.” Id.

Nor was there evidence that other schools experienced threats to student safety resulting from their bathroom policies that permitted transgender students to use the school bathrooms matching their gender identity. Recall that Valbrun-Pope, a BCPS official, testified that “with 271,000 students, 300 schools, and implementation over … five years, [BCPS] ha[d] not had issues related to safety in the restrooms that are specifically connected to transgender students.” Doc. 161 at 64. Kefford was unaware of “any child having an issue with a transgender child using the bathroom that aligns with their gender identity.” Id. at 118. And Aberli, a JCPS high school principal, said he had encountered no safety issues due to the implementation of a bathroom policy allowing transgender students to use the restrooms aligning with their gender identity.

What is more, Adams showed the bathroom policy could in fact undermine student safety. At trial, Smith was asked whether it would be safe for “a transgender girl, with girls’ parts, in terms of her breasts and everything else” to use the boys’ restroom. Id. at 209. Smith admitted that it would be more “comfortable and safe with all parties involved” if that transgender girl did not use the boys’ restroom. Id.

Having failed either to explain what it meant by student safety or to introduce any evidence at trial to support its speculation, the School District failed to carry its evidentiary burden to show a “substantial relationship” between its bathroom policy and student safety. Hogan, 458 U.S. at 725. Because the School Board failed to meet its burden of proof, the bathroom policy fails heightened scrutiny.^[22]

iii. The Policy Is Administered Arbitrarily and Enforced Inconsistently.

Another telltale sign that the policy is untethered from any legitimate government interest is that it is administered arbitrarily. When a state actor does not take care to administer a policy containing a sex-based classification in a consistent or effective fashion, the state actor’s inconsistent administration and enforcement calls into question whether the sex-based classification is substantially related to any important interest. See Whitaker, 858 F.3d at 1054 (observing that a transgender student could use the bathroom matching his or her gender identity if he or she simply chose to register with the school district using a passport rather than a birth certificate, which demonstrated “the arbitrary nature of the policy”); Grimm, 972 F.3d at 620 (Wynn, J., concurring) (observing that the bathroom policy at issue “is arbitrary and provides no consistent reason” for assigning certain students to certain bathrooms). And that makes sense: how can the School District’s policy be substantially related to a legitimate state interest if the School District does not even care enough about the policy to administer it effectively?^[23]

The School District’s reliance on a student’s enrollment documents gives rise to this sort of problem—the School District administers the policy in an arbitrary and haphazard way. As the School District admitted, if a transgender student legally changed his or her birth certificate and other enrollment documents to reflect a different gender before enrolling in the School District, then that transgender student would be able to use the bathrooms matching his or her gender identity. The School Board also admitted that it had no process for identifying transgender students in its student population, so transgender students could violate the policy and the School District would be none the wiser. See also Jordan Dissenting Op. at 4–8. At the same time, if after enrollment a transgender student had his official documents changed to reflect his sex consistently with his gender identity, the School District will not accept the revised documents for purposes of the bathroom policy. Therefore, the policy is arbitrary in that some transgender students—like Adams—are restricted by the bathroom policy, while other transgender students are unaffected by it.

And recall Smith’s admission that she hopes transgender students will ignore parts of the bathroom policy. When asked whether “a transgender girl, with girls’ parts, in terms of her breasts and everything else” should use the boys’ restroom, Smith said that she would rather that student avoid using the boys’ restroom. Doc. 161 at 209. So the bathroom policy is arbitrary and “disingenuous,” to use the district court’s word, in this sense too: the School District hopes that transgender students will follow parts of the bathroom policy and ignore other parts of it. Doc. 192 at 28 n.30.

The arbitrary way in which the School District enforces the policy offers yet another reason why the bathroom policy fails heightened scrutiny. For this reason, too, I would affirm the district court on Adams’s equal protection claim.^[24]

C. Adams’s Exclusion from the Boys’ Restroom Under the Bathroom Policy Violated Title IX.

I turn now to Adams’s Title IX claim. Title IX provides: “No person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). There is no dispute that the use of school restrooms constitutes an “educational program or activity” and that the School District receives federal funding as required by Title IX. Therefore, Adams must show only that he was subjected to “discrimination” “on the basis of sex” to succeed on his Title IX claim. Id.

I begin with discrimination. Discrimination “refers to distinctions or differences in treatment that injure protected individuals.” Burlington N. Santa Fe. Ry. Co. v. White, 548 U.S. 53, 59 (2006). To determine what it means to “discriminate” under Title IX, we look to the relevant implementing regulations, which explain that a school cannot “[s]ubject any person to separate or different rules of behavior, sanctions, or other treatment” on the basis of sex. 34 C.F.R. § 106.31(b)(4). Neither can a school “[p]rovide different aid, benefits, or services or provide aid, benefits, or services in a different manner,” or “[d]eny any person such aid, benefit, or service” on the basis of sex. Id. § 106.31(b)(2), (3).

The School District’s bathroom policy bans transgender students from using the restroom that matches their gender identity. There is no doubt that this constitutes discrimination, because transgender boys are treated differently from cisgender boys and transgender girls are treated differently from cisgender girls, with only cisgender students receiving the benefit of being permitted to use the restroom matching their gender identity and transgender students being denied that benefit. White, 548 U.S. at 59; see 34 C.F.R. § 106.31(b). Being denied this benefit injures transgender students. Adams testified that the bathroom policy left him feeling anxious, depressed, ashamed, and unworthy—like “less of a person” than his peers. Doc. 160-1 at 204. And the record evidence reflects that many transgender people benefit from using bathrooms consistent with their gender identity because it alleviates the debilitating distress and anxiety of living with gender dysphoria.

The harder question is whether the discrimination is “on the basis of sex.” To begin with, we need a definition for the word “sex” in the Title IX context. Consulting contemporaneous dictionary definitions, the majority opinion concludes that the word “sex” as used in Title IX unambiguously refers to “biological sex.” Majority Op. at 36–38; see id. at 38, 40 (explaining that “sex” in Title IX equates to “biology and reproductive function”). I assume, for the purposes of our discussion today, that the term “sex” as used in Title IX unambiguously refers to “biological sex,” a term even the majority opinion acknowledges contains more than one biological component.^[25]

As I have explained above, though, undisputed record evidence in this case demonstrates that, among other biological components, “biological sex” includes gender identity. And, of course, it would defy the record and reality to suggest that all the markers of a person’s biological sex must be present and consistent with either maleness or femaleness to determine an individual’s “biological sex.” Based on the unrebutted evidence that Adams introduced, the district court found that “‘physical aspects of maleness and femaleness’ may not be in alignment (for example, ‘a person with XY chromosomes [may] have female-appearing genitalia).” Doc. 192 at 6 (quoting Doc. 151-4 at 7); see also Wilson Dissenting Op. at 2–4. I believe the majority would agree with me that a person can be female after a hysterectomy, for example. Or that an individual with Mayer-Rokitansky-Küster-Hauser Syndrome (that is, born with XX chromosomes, ovaries, and labia but without a vagina and uterus) can be female. Putting together these two concepts—that “biological sex” includes gender identity and that the markers of a person’s biological sex may diverge—despite the majority’s protestations otherwise, a person can be male if some biological components of sex, including gender identity, align with maleness, even if other biological components (for example, chromosomal structure) align with femaleness.^[26]

Next, “on the basis of.” The clause “on the basis of,” appearing before the word “sex,” imposes the familiar but-for standard of causation. When interpreting statutes generally, and antidiscrimination laws specifically, “Congress is normally presumed” to have legislated a “but for” causation standard “when creating its own new causes of action.” Comcast Corp. v. Nat’l Ass. of African American-Owned Media, 140 S. Ct. 1009, 1014 (2020). The but-for causation standard means that “a particular outcome would not have happened ‘but for’ the purported cause.” Bostock, 140 S. Ct. at 1739. It is possible for the same event to have more than one but-for cause. Id. Putting these concepts together, we ask whether Adams’s discriminatory exclusion from the boys’ restroom at Nease High School under the bathroom policy would not have happened but for the biological markers of his sex.

Here again, Bostock’s reasoning, separate from any Title VII-specific language, demonstrates that “sex” was a but-for cause of the discrimination Adams experienced. Recall that in Bostock the Supreme Court reasoned that when an employer fired an employee for being transgender, the discrimination was due to at least two factors, the individual’s “sex” and “something else.” Id. at 1742.^[27] The same reasoning applies here: Adams was excluded from the boys’ bathroom under the policy either because he had one specific biological marker traditionally associated with females, genital anatomy (or, put differently, because he lacked that one specific biological marker traditionally associated with males). And so a but-for cause of Adams discriminatory exclusion from the boys’ restroom was “sex” within the meaning of Title IX. I would therefore affirm the district court’s judgment on Adam’s Title IX claim in addition to the equal protection claim.^[28]

The majority opinion’s analysis of Adams’s Title IX claim relies on statutory and regulatory carveouts, which, it says, foreclose the claim. It points to the following language in Title IX: “[N]othing contained [in Chapter 38] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. The majority opinion also points to Title IX’s implementing regulations, which allow for “separate toilet[s], locker room[s], and shower facilities on the basis of sex.” 34 C.F.R. § 106.33.

But all the carveouts “suggest[] is that the act of creating sex-separated [facilities] in and of itself is not discriminatory.” Grimm, 972 F.3d at 618. That is, separating the sexes based on biological sex is not per se a violation of Title IX. The carveouts do not, however, address how an educational institution may assign a person to a facility when the biological markers of his sex point in different directions. Nor do the carveouts permit an educational institution to “rely on its own discriminatory notions of what ‘sex’ means.” Id. (emphasis added). Adams, a transgender boy, has biological markers of sex indicating that he is male and markers indicating that he is female. The School District’s policy categorically assigned transgender students, including Adams, to bathrooms based on only one biological marker: their sex assigned at birth. Adams’s claim that the School District’s notion of what “sex” means is discriminatory is not foreclosed by the Title IX carveouts. See id.^[29]

D. There is No Reason to Fear the Majority Opinion’s Slippery Slope Arguments.

The majority opinion warns that ruling for Adams would “have ramifications far beyond the bathroom door.” Majority Op. at 46. If we ruled for Adams, the majority opinion cautions, our decision would “transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities.” Id. at 49. One School Board witness expressed concern that, without the bathroom policy, “the football quarterback” could say “I feel like a girl today,” gain entry to the girls’ restroom, and harm female students. Doc. 161 at 213. For at least three reasons, the majority opinion’s slippery-slope predictions are unfounded.

First, most of the majority opinion’s concerns, and the concerns of the School District, have to do with gender fluid individuals—people who are not transgender or cisgender, but who instead, according to the record, have a flexible view of gender that “changes between male and female.” Doc. 192 at 17. This case has no bearing on the question how to assign gender fluid individuals to sex-separated bathrooms, though. The School District’s bathroom policy categorically bans only transgender students—defined as those who “consistently, persistently, and insistently” identify as one gender—from using the restroom that matches their gender identity. Id. at 47 (internal quotation marks omitted). By its plain terms, the policy simply does not apply to gender fluid individuals. So, for today, we can set aside the concerns about gender fluidity.

Second, we could affirm the district court’s judgment on Adams’s equal protection claim based on the School District’s evidentiary failures alone. The School District stipulated that this is a heightened scrutiny case, but it failed to submit any evidence to establish a “substantial relationship” between the bathroom policy and student privacy or safety. Notably, although Adams presented scientific expert testimony, the School District chose not to call its experts to rebut that evidence. Affirming the district court’s judgment in this narrow way would not prevent other school districts from relitigating this issue, so long as they brought evidence to court with them. But the majority has rejected that approach.

Third, recall that Adams’s entire lawsuit depends upon the existence of sex-separated bathrooms. Adams sought only to be treated like any other boy. He asked for, and the district court awarded, an injunction that prevented the School District from barring Adams from the boys’ bathroom, not from having sex-separated bathrooms. The majority opinion employs stereotypic ideas and assumptions in an attempt to persuade readers that admitting transgender students into the bathrooms corresponding with their consistent, persistent, and insistent biological gender identity will result in the elimination of sex-separated bathroom facilities. This is simply not so. As to equal protection claims by transgender students, the facts unique to each case will determine whether a school district has met its burden under heightened scrutiny. And with respect to Title IX claims, the fact that sex is a but-for cause of differential treatment does not necessarily mean that actionable discrimination exists. Our law, both constitutional law and statutes and regulations, recognizes a legitimate, protectible privacy interest in the practice of separating bathroom facilities by sex. But that interest is not absolute: it must coexist alongside fundamental principles of equality. Where exclusion implies inferiority, as it does here, principles of equality prevail.

IV. CONCLUSION

Adams’s case tells the story of a hauntingly familiar harm. By forcing Adams to use the gender-neutral restrooms, the School Board required Adams to undergo “humiliating” public “walk[s] of shame” in front of his peers and others at school to use a separate bathroom. Doc. 160-1 at 117, 204. A member of our sister circuit powerfully described the connection between the harm Adams experienced and the harm other children suffered in the not-so-distant past:

No less than the recent historical practice of segregating Black and white restrooms … the unequal treatment enabled by the [School District’s] policy produces a vicious and ineradicable stigma. The result is to deeply and indelibly scar the most vulnerable among us—children who simply wish to be treated as equals at one of the most fraught developmental moments in their lives—by labeling them as unfit for equal protection in our society.

Grimm, 972 F.3d at 683. By excluding Adams from the boys’ restrooms at Nease High School and relegating him to the gender-neutral restrooms, the School District forced Adams to wear what courts have called a “badge of inferiority.” See Grimm v. Gloucester Cnty. Sch. Bd., 976 F.3d 399, 403 (4th Cir. 2020) (Wynn, J., concurring in denial of reh’g en banc). The Constitution and laws of the United States promise that no person will have to wear such a badge because of an immutable characteristic. The majority opinion breaks that promise. Respectfully, I dissent.

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undermine the value of girls’ sports for cisgender girls. For one thing, there will never be many transgender girls who participate in girls’ sports, considering the very low percentage of the population identifying as transgender, only some of whom identify as girls and many of whom will not compete in sports. See Jody L. Herman et al., UCLA School of Law Williams Institute, How Many Adults and Youth Identify as Transgender in the United States? (June 2022), https://williamsinstitute.law.ucla.edu/publications/trans-adults-united-states (last accessed Dec. 28, 2022) (estimating that less than 1.5% of the youth population identifies as transgender). For another, an abundance of biological differences has always existed among cisgender girls and women, who compete against one another despite some having distinct biological advantages over others. See, e.g., Canadian Center for Ethics in Sport E-Alliance, Transgender Women Athletes and Elite Sport: A Scientific Review at 18–30 (2022), https://www.transathlete.com/_files/ugd/2bc3fc_428201144e8c4a5595fc748ff8190104.pdf (“E-Alliance Review”) (last accessed Dec. 28, 2022) (analyzing biological factors affecting trans- and cis- women athletes’ participation in high performance sports and concluding that there is no compelling evidence, with or without testosterone suppression, of performance benefits that can be traced directly to transgender status). Indeed, something as simple as being left-handed may offer a significant competitive advantage in some sports, and yet we do not handicap or ban left-handed girls in Title IX-funded programs. See Steph Yin, Do Lefties Have an Advantage in Sports? It Depends, https://www.nytimes.com/2017/11/21/science/lefties-sports-advantage.html (last accessed Dec. 28, 2022). Plus, to adopt Judge Lagoa’s concerns is to deny the myriad ways in which transgender girls and women are disadvantaged in athletics, further casting doubt on any fears that transgender athletes will overwhelmingly dominate, and somehow spoil, girls’ sports. See E-Alliance Review at 36–38.

What is more, Judge Lagoa’s concurrence fails to acknowledge the value that inclusion of transgender girls may have on girls’ sports, both to trans- and cis-gender girls. It is well documented that the primary beneficiaries of Title IX have been white girls from socioeconomically-advantaged backgrounds.

1. “Doc.” refers to docket entries in the district court record.
2. The record treats the terms “sex” and “gender” as synonymous and interchangeable. Although the terms “sex” and “gender” may refer to distinct, if interconnected, concepts, I am confined to the record, where the terms are used synonymously.
3. The School Board did not define “biological sex.” It contextualized the term by using words like “physiological” or “anatomical” sex, but it did not explain what it meant by those words, either. Appellant’s En Banc Br. at 8. The district court found that “biological sex” as used in the bathroom policy meant birth-assigned sex. Doc. 192 at 19. And at oral argument, the School Board confirmed that, for purposes of the policy, “biological sex” meant birth-assigned sex. In using the term “biological sex,” then, the School Board refers to only one biological characteristic—a child’s “external genitalia” which “has historically been used to determine gender for purposes of recording a birth as male or female.” Id. at 6.
4. Other unrebutted evidence made clear that the biological markers of sex “may not be in line with each other (e.g., a person with XY chromosomes may have female-appearing genitalia).” Doc. 151-4 at 7; see also Wilson Dissenting Op. at 2–4 (describing examples of divergent sex components in intersex people).
5. The acronym “LGBTQ” refers to: “lesbian, gay, bisexual, transgender, and questioning (and/or queer).” Doc. 192 at 13 n.19.
6. It is unclear whether the taskforce was aware of the policy at Aberli’s school specifically when it conducted its review. The record supports, however, that the taskforce reviewed BCPS’s policy and other similar policies allowing transgender students to use the restrooms corresponding to their gender identities.
7. The term “gender fluid” likely carries a more nuanced meaning that the district court’s definition, but I am confined to the way in which the term is used in the record.
8. As part of its fact-finding, the district court went onsite to examine the bathrooms at Nease High School. The court found “[t]here are four sets of multi-stall, sex-segregated bathrooms available” to Nease students. Doc. 192 at 23. The boys’ restrooms have both urinals and stalls with doors. In addition, Nease has 11 gender-neutral single-stall bathrooms which are open to any student or staff member. There is no gender-neutral bathroom near the cafeteria; a student who wishes to use a gender-neutral bathroom during lunch must ask permission to leave that area.
9. 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.
10. The School District argues that Adams is not similarly situated to “a biological male” because he is “a biological female.” See En Banc Reply Br. at 6–7. Without outright agreeing, the majority opinion expresses doubt that Adams is similarly situated to “biological boys” in the School District for purposes of its bathroom policy, apparently because Adams—unlike the “biological boys” under the policy—was not assigned male at birth. Majority Op. at 18–20 n.6. By seeking to compare Adams’s treatment under the policy to that of “biological girls,” rather than to that of cisgender boys, the School District (and in turn the majority opinion) reveals its own bias: “it believes that [Adams’s] gender identity is a choice, and it privileges sex-assigned-at-birth over [his] medically confirmed, [biologically rooted,] persistent and consistent gender identity.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 (4th Cir. 2020). “The overwhelming thrust of everything in the record … is that [Adams] was similarly situated to other [cisgender] boys, but was excluded from using the boys restroom facilities based on his sex-assigned-at-birth.” Id. “Adopting the [School District’s] framing of [Adams’s] equal protection claim here would only vindicate [its] own misconceptions, which themselves reflect stereotypic notions.” Id. (internal quotation marks omitted).

    And, once again, the majority opinion’s reference to Supreme Court cases addressing the physical differences between men and women misses the point: those cases do not define what it means to be a man or a woman, so they do not demonstrate that “biological sex” as the majority opinion sees that term—sex assigned at birth, or sex assigned at birth and chromosomal structure—was the “driving force behind” the Court’s sex-discrimination jurisprudence. Maj. Op. at 18 n.6. We are in new territory here, despite the majority opinion’s refusal to explore it.

11. There is no dispute that the School Board is a state actor for the purposes of this lawsuit.
12. Because the policy facially discriminates against transgender students, we do not need to discuss discriminatory intent. Only when a law is neutral on its face but has a discriminatory impact does a plaintiff have to demonstrate discriminatory intent behind the policy or law. See generally Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
13. Adams argues that heightened scrutiny applies because: (1) the policy cannot be stated without referencing sex-based classifications; (2) the bathroom policy excludes him on the basis of sex; (3) the bathroom policy relies on impermissible stereotypes; (4) the policy creates two classes of transgender students; (5) transgender individuals constitute a quasi-suspect class; (6) even if the policy is not facially discriminatory, it deliberately targets and disparately impacts transgender individuals.
14. The majority opinion and the School District contend that heightened scrutiny applies simply because the bathroom policy separates the two sexes.
15. The majority says it does not address the quasi-suspect-class issue because the district court did not do so. Maj. Op. at 17–18 n.5. But we can affirm the district court’s decision that the Board’s policy violates the Equal Protection Clause on any basis supported by the record. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
16. This exhibit comes from an organization called the American Psychiatric Association. It is a three-page document called “Position Statement on Discrimination Against Transgender and Gender Variant Individuals.” Doc. 115-10. The district court took judicial notice of this exhibit and others at Docket Entry 115 cited in this paragraph to the extent the court “relied on the materials.” Doc. 192 at 13 n.19.
17. This exhibit is also from the American Psychological Association. It is a five-page document captioned “Transgender, Gender Identity, and Gender Expression Non-Discrimination.” Doc. 115-12 at 2.
18. The district court took judicial notice of this report. See Doc. 192 at 8 n.15.
19. This exhibit comes from an organization called the American Family Therapy Academy. It is a two-page document called “Statement on Transgender Students.” Doc. 115-2.
20. The majority opinion expresses “grave doubt” that transgender individuals belong to a quasi-suspect class, noting that the Supreme Court has declined to designate individuals with intellectual disabilities as such. Maj. Op. at 18 n.5 (internal quotation marks omitted). In declining to deem those with intellectual disabilities members of a quasi-suspect class, the Court emphasized “the distinctive legislative response, both national and state,” demonstrating that “lawmakers have been addressing their difficulties in a manner that belies a continuing apathy or prejudice.” Cleburne, 473 U.S. at 443; see id. at 444 (explaining that legislation had “singl[ed] out the [intellectually disabled] for special treatment” and that further legislative efforts to afford additional special treatment should be encouraged rather than potentially discouraged with the application of heightened scrutiny). This included remedial efforts in funding, hiring, government services, and education. Id. at 443. This is not at all the case with transgender individuals. Instead of a nationwide effort to provide “special treatment” for members of this group, rampant discrimination continues largely unchecked. Indeed, legislation that has the effect of limiting the rights of transgender individuals has been introduced (and in some cases, enacted) by legislatures in this country. No precedent prevents us from concluding that transgender people are a quasi-suspect class.
21. I do not buy the majority opinion’s characterization of the School District’s bathroom policy as it applies to transgender students “an accommodation” under which they could use either of two restroom options. Maj. Op. at 34. In practice, the policy forced transgender students like Adams to use only the gender-neutral bathrooms.
22. The majority opinion points to the following stipulation as evidence of safety and privacy concerns:

    The parties stipulate that certain parents of students and students in the St. Johns County School District object to a policy or practice that would allow students to use a bathroom that matches their gender identity as opposed to their sex assigned at birth. These individuals believe that such a practice would violate the bodily privacy rights of students and raise privacy, safety and welfare concerns. Plaintiff submits this stipulation does not apply to himself or his parents.

    Doc. 116 at 22 ¶ 3. The import of this stipulation is lost on me. What do the personal beliefs of “certain” individuals in the School District have to do with whether the policy actually furthers the asserted privacy and security interests or is instead founded on stereotypic biases and assumptions? Id. And even if the stipulation provided some support for the School District’s policy, how does it get the District close to the “exceedingly persuasive” fit it is required to establish? Nguyen, 533 U.S. at 70 (internal quotation marks omitted). It cannot and does not.

23. The majority opinion asserts that Adams, the appellee, waived this line of argument by failing to raise it in the district court or his opening brief to the panel. See Majority Op. at 8–10 & n.2. The majority opinion is mistaken. “Parties can most assuredly waive or forfeit positions and issues on appeal, but not individual arguments.” Hi-Tech Parm. Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (alteration adopted) (internal quotation marks omitted). Adams did not waive this argument, but even if he had, we may affirm the district court on any basis supported by the record. Wetherbee v. S. Co., 754 F.3d 901, 905 (11th Cir. 2014).
24. The majority opinion asserts that the School District is owed deference regarding how it chooses to manage the student population. That may be true in appropriate contexts, but no tenet of constitutional law provides that children “shed their constitutional rights … at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). None of the cases the majority opinion cites provides for a doctrine of deference that would excuse a violation of a student’s equal protection rights.
25. I therefore have no reason to address the majority opinion’s Spending Clause argument. The Spending Clause cannon of construction arguably comes into play only if we find ourselves dealing with an ambiguous statute. See generally Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
26. So, the majority is simply wrong when it asserts that my reading of Title IX would result in “dual protection … based on both sex and gender identity.” Maj. Op. at 42 (emphasis omitted). On this record, we can discern that gender identity is one of the components of a person’s sex, so protection based on gender identity is protection based on sex.
27. Again, and importantly, the Court in Bostock merely assumed that “sex” did not include gender identity. Bostock, 140 S. Ct. at 1739.
28. In a special concurrence, Judge Lagoa writes that permitting “sex” under Title IX to include gender identity would require that institutions allow transgender girls to participate in girls’ sports. She worries that such integration threatens to undermine the progress girls and women have made via participation in Title IX programs. See Lagoa Concurring Op. at 2. But there is no empirical data supporting the fear that transgender girls’ participation in girls’ sports in any way undermines the experience and benefits of sports to cisgender girls. The fact that there may be biological differences between transgender and cisgender girls does not mean that transgender girls will so overwhelm girls’ sports programs with competitive advantages as to Alanis Thames, Equity in Sports has Focused on Gender, Not Race. So Gaps Persist, https://www.nytimes.com/2022/06/30/sports/title-ix-race.html (last accessed Dec. 28, 2022). Integration into girls’ sports of girls, including transgender girls, who may have gone without such historical privileges, undoubtedly would benefit the whole of girls’ sports.
29. And no, my reading does not “swallow the carve-outs and render them meaningless.” Maj. Op. at 43 n.7. Rather, my reading recognizes the limits to the carveouts—they cannot provide carte blanche for educational institutions to set policies defining “sex” in a manner that discriminates against transgender students like Adams. This is why the majority opinion’s hypothetical of “a biological female student, who does not identify as transgender and who sued her school under Title IX to gain access to the male bathroom,” Maj. Op. at 42, is unenlightening. The majority is of course correct that “preventing the female student from using the male bathroom would constitute separation on the basis of sex.” Id. But the majority’s hypothetical case—where all biological markers of the female student point to one sex—falls squarely within the carveouts, and this case—for all the reasons I have just explained—does not. The majority’s hypothetical, based on its counterfactual assumption that sex is a single-factor label, is not a helpful analytical tool in this case.