USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 69 of 80
sexes are not fungible … .” (internal quotation marks omitted)). Indeed, the Court’s justification for giving heightened scrutiny to sex-based classifications makes sense only with reference to physiology.
In one of its foundational sex-discrimination decisions, the Court justified heightened scrutiny this way: “since sex … is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (internal quotation marks omitted). In other words, the Court endorsed heightened scrutiny because laws “distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women.” Cleburne, 473 U.S. at 441. To say that it is an unconstitutional stereotype to believe that “one’s gender identity and expression should align with one’s birth sex,” the majority must not only rewrite the Supreme Court’s physiological rationale for heightened scrutiny of sex-based classifications, but also hold that many of the Court’s sex-discrimination decisions turned on an impermissible stereotype. See Nguyen, 533 U.S. at 73; Virginia, 518 U.S. at 533; Geduldig, 417 U.S. at 496 n.20; Frontiero, 411 U.S. at 686. We, of course, cannot take either of those actions.
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