USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 110 of 150
been at issue. To the contrary, Adams’s claim depends on the existence of sex-separated bathrooms.
Refusing to engage with the record or with the actual question on appeal, the majority opinion reframes this case to its liking. It declares that “biological sex” is “sex based on chromosomal structure and anatomy at birth.” Maj. Op. at 3. From this ipse dixit, the majority easily decides that gender identity is entirely separate from “biological sex,” that Adams is “a biological female,” that the Supreme Court has long relied on “biological sex” to distinguish between men and women in its sex-discrimination jurisprudence, and that this case has to be about the legality of sex-separated bathrooms because it is only about this narrow definition of “biological sex.” These are but smoke and mirrors.
The majority opinion’s definition of “biological sex” is untethered to anything in this case. It is not the definition the School District has employed. It is most certainly not the definition established by the unrebutted expert testimony in the record. It ignores the unrefuted evidence that gender identity is an immutable, biological component of sex, not something entirely separate. And it ignores the unrefuted evidence that birth-assigned sex and chromosomal structure take a back seat in determining a person’s sex when that person’s gender identity diverges from those two
