USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 41 of 80
The new majority opinion continues its earlier pretense that its reasoning applies only to plaintiff Drew Adams and that it does not decide that sex-separated locker rooms are unconstitutional. But the majority’s assurances ring hollow. The logic of this decision, no different from the last opinion the majority issued, would require all schoolchildren to use sex-neutral bathrooms and locker rooms. I dissent.
A. Relying on Enrollment Documents Is Not an Arbitrary Means of Determining Sex.
The new majority opinion identifies a single problem with the actions of the schools. It concludes that Adams should prevail because the policy of “assigning students to bathrooms based solely on the documents the School District receives at the time of enrollment” is arbitrary and fails to advance the schools’ interests in privacy. Majority Op. at 12. It reaches this conclusion because a student could evade the sex-separated bathroom policy by enrolling as a member of the opposite sex, and because, “without justification,” the schools “reject information on current government records in favor of outdated information.” Id. at 15–17. The majority frames the issue incorrectly in at least two ways.
For one thing, the majority follows Adams in using the word “sex” as a synonym for “gender identity.” E.g., id. at 6 (“Mr. Adams amended his legal documents to reflect his male sex.”). As Adams put it, “[t]ransgender persons are people whose gender identity diverges from the sex they were assigned at birth,” and a “transgender boy’s sex is male (even though he was assigned the sex of
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