USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 49 of 80
school and girls will use the girls’ restrooms at school, using those terms as traditionally defined based on biological traits.” The majority is also wrong when it says the school had a policy of requiring students to use the restroom associated with their “governmentally-recognized legal sex.” Id. at 15. The schools use government documents as evidence of the students’ actual sex, and they require each student to use the bathroom associated with his sex. Even the majority understood this point in its last opinion. Vacated Majority Op. at 12. The majority transforms the schools’ sensible way of ascertaining sex and unassailable way of separating restrooms into a single, irrational policy that is unsupported by the record and would be unrecognizable to the parties.
Another point further undermines the majority’s reimagination of the school policies. Under the majority’s second theory, the school district did not begin to violate Adams’s rights until it refused to accept documents designating Adams as male. But nothing about this lawsuit turns on when Adams obtained an updated birth certificate or driving permit or when the school district refused to accept them. Adams obtained both documents and provided them to the school district well after the events that prompted the lawsuit. And Adams obtained damages reflecting “emotional damage, stigmatization and shame from not being permitted to use the boys’ restroom at school,” not limited to the time after the school district refused to accept the documents identifying Adams as male.
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