USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 48 of 80
even though newer documents are “[p]resumably” more accurate. Id. at 16–17. The majority says it can “come up with no explanation” for the schools’ preference for students’ older documents. Id. at 17.
The majority is bewildered only because it closes its eyes to the record, not to mention biological reality. The schools separate restrooms by sex, not (as the majority thinks) by “governmentally-recognized legal sex.” Id. at 15. Because a student’s sex does not change over time, the schools have no need to accept updates. They instead determine sex once, using the ordinarily accurate method of self-reporting and supporting legal documentation. The majority’s assertion that newer documents are “[p]resumably” better evidence of sex than older documents, id. at 17, makes sense only on the view that “sex” means the same thing as “gender identity.” But the terms do not share the same meaning.
The majority’s reasoning depends on distorting two policies by eliding them into one. It says the “unwritten bathroom policy” requires “that a student use either a designated single-stall restroom or the bathroom corresponding to the sex listed on the student’s enrollment documents.” Id. at 7–8. That policy does not exist. The parties were clear that the schools require a student to use a gender-neutral restroom or the restroom corresponding to his sex, as opposed to his gender identity. The district court reached the same conclusion, finding that “the unwritten School District bathroom policy was that boys will use the boys’ restrooms at
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