USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 29 of 80
all, to “re-examine” the policy is precisely the kind of arbitrary harm equal protection prohibits.
The dissent also claims we “strike[] out on [our] own” and set aside the parties’ presentation of the issues. Dissenting Op. at 50. But it is the dissent that eschews party presentation by dispensing with the record and wrestling instead with hypotheticals and new and entirely separate issues. Here, Mr. Adams has consistently argued that the challenged policy violates the Equal Protection Clause because it does not substantially fit with the School District’s purported goals. See R. Doc. 137 at 10, 16–17 (Mr. Adams noting that he was instructed not to use the boys’ bathroom “pursuant to an unwritten policy, and a written set of guidelines entitled [‘Best Practices’]”; that the policy is based on students’ information “designated in their enrollment paperwork, in the student’s birth certificate, and in other school records”; that “[t]he school does not undertake any protocol or effort to verify the student’s sex as it appears in the enrollment paperwork and the student’s records”; and that “[t]he District does not routinely keep records of, or ask students to identify, their chromosomes, external sex organs, or internal sex organs”); see also R. Doc. 116 at 2 (Mr. Adams stating in the joint pretrial submission that he challenged the policy that was based in part “on a Best Practices Guideline”); Appellee’s Br. at 34–45 (arguing the policy excluding him from the boys’ bathroom failed intermediate scrutiny). That the policy enforced
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