USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 19 of 80
D.
We now turn to the dissent. Insofar as the dissent suggests this opinion opens the floodgates for vast societal change, it is only because the dissent has decided to reframe the issue in this way. This case is only about Mr. Adams’s as-applied challenge to the School District’s policy denying him the ability to use the boys’ bathroom at Nease High School. The dissent also spills much ink over the former (now vacated) panel opinion. The majority of the pages in the dissent are directed at an opinion no longer in existence.[1] Indeed much of the dissent continues to shadowbox with an opinion we never wrote. We view the dissent’s recycling of outdated arguments as an apt metaphor for its analytical approach.
We begin by setting the record straight on a few issues. The dissent argues that “relying on enrollment documents is not an arbitrary means of determining sex.” Dissenting Op. at 41 (cleaned up). We understand the dissent to be making three subsidiary claims in support of that assertion. First, the dissent says our
- ↑ Specifically, only the first sixteen pages of the dissenting opinion address the now-vacated majority opinion. See infra at 39–54.
persuasive justification for th[e] sex-based discrimination”); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 293 (W.D. Pa. 2017) (holding transgender students showed likelihood of success on equal protection claim to access restrooms consistent with their gender identity, because “there is insufficient record evidence of any actual threat to any legitimate privacy interests of any student by the [students’] use of [common] restrooms consistent with their gender identity”); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850, 877 (S.D. Ohio 2016) (holding transgender girl showed likelihood of success on equal protection claim to access bathroom matching her gender identity, because the defendants failed to show that the “discriminatory policy is substantially related to their interests in privacy or safety” and because the policy rested on hostility toward transgender students).
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