USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 40 of 80
well-established precedent. The majority now tacitly concedes that its opinion could not withstand scrutiny.
The majority accordingly has withdrawn its earlier opinion. But its new opinion fares no better than the last. It distorts the challenged policy in a brand-new way, and it invents a legal claim the parties never presented. And its new opinion still fails to identify a violation of the law.
The majority’s new position is as wrong as its old position. I first explain the errors in its revised opinion. The parties litigated the case as a challenge to the lawfulness of sex-segregated bathrooms, and the district court decided it on that basis. But on appeal, the majority identifies a new policy as unconstitutional: the schools’ practice of relying on self-reported sex and supporting documentation to determine the sex of its students. The majority’s new reasoning relies entirely on eliding that practice and the policy Adams actually challenged—the policy of separating bathrooms by sex.
I then explain why the majority is right to retreat from its previous position. By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reached the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom.
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