USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 68 of 80
Majority Op. at 26. It also faulted the policy for indulging in the purportedly unconstitutional stereotype that “one’s gender identity and expressing should align with one’s birth sex.” Id. Neither of these arguments has merit.
The majority never explained how the school policy “presume[d] every person deemed ‘male’ at birth would act and identify as a ‘boy’ and every person deemed ‘female’ would act and identify as a ‘girl.’” Nor could it. The policy does not turn on how students “act and identify.” It assigns bathrooms by sex, which is not a stereotype. See Nguyen, 533 U.S. at 73 (“Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real.”); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (“Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.”).
The withdrawn majority opinion’s other contention—that believing “one’s gender identity and expression should align with one’s birth sex” is an unconstitutional stereotype—fares no better. The Supreme Court has long grounded its sex-discrimination jurisprudence in reproductive biology. See, e.g., Nguyen, 533 U.S. at 73 (“The difference between men and women in relation to the birth process is a real one … .”); Geduldig, 417 U.S. at 496 n.20 (“[I]t is true that only women can become pregnant … .”); see also Virginia, 518 U.S. at 533 (“Physical differences between men and women, however, are enduring: [T]he two
68
