USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 52 of 80
school discriminated by treating Adams “differently (i) from other boys, who can use restrooms that match their male gender identity; and (ii) from non-transgender students, since the policy in effect relegates him to a gender neutral restroom.” Adams never relied on the sole rationale on which the majority now rests its conclusion: that the school acts arbitrarily because it treats transgender students differently from each other and because it prefers older documents to newer ones. For all these reasons, the majority’s new rationale does no better than its old one.
The majority distorts what I have said both here and in my earlier dissent. For example, the majority wrongly insists that I previously agreed with its understanding of the schools’ policy. Majority Op. at 24–25. Although I acknowledged the finding that the school district determines each student’s sex by looking at enrollment forms, Vacated Dissenting Op. at 58, I never asserted or implied that the school district requires students to use the bathroom corresponding to their “governmentally-recognized legal sex,” Majority Op. at 15. I have always understood the school district’s policy to be that students are required to use the bathroom corresponding to their sex. The majority also asserts that I stated, without record support, that newly enrolled students must receive a physical examination in which a doctor examines their genitalia. Id. at 25 n.7. But I said no such thing. Both Florida law and the record make clear that students who enroll in a Florida school system are required to present a certification of a physical
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