USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 9 of 150
bathroom policy—i.e., the policy separating the male and female bathrooms by biological sex instead of transgender status or gender identity. But this case has never been about the enrollment documents policy.
This was not the challenge advanced by Adams in the district court. Indeed, Adams centered the district court litigation on the bathroom policy. For example, in Adams’s amended complaint, Adams sought relief for “his exclusion” and denial of “equal access to the boys’ restroom.” Adams specifically challenged “[the School Board’s] policy of excluding transgender students from the single-sex facilities that match their gender identity.” Then, in the joint pretrial statement, Adams sought to recover damages for the harm Adams suffered “as a result of [the School Board’s] implementation of its discriminatory restroom policy.” In Adams’s proposed findings of fact and conclusions of law, Adams defined the School Board’s purported discriminatory bathroom policy as “[the School Board’s] policy, custom, or usage, as these terms are used in 42 U.S.C. § 1983, barring transgender students from the restrooms consistent with their gender identity.” And because Adams claimed that the policy “treated [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 sought to have the district court enjoin the School Board from enforcing a policy “that denies transgender students access to and use of restrooms that match a student’s gender identity.”
Ultimately, Adams maintained, until this en banc proceeding after two prior opinions had been vacated, that this lawsuit was about allowing transgender students to access bathroom facilities that match their gender identities, not revising the means by which the School Board determines biological sex. While Adams now tries to raise a new claim that the enrollment documents policy violates the Equal Protection Clause because it creates an “arbitrary sex-based distinction,” Adams cannot amend the complaint by arguments made in an appellate brief. Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (explaining that a plaintiff may not amend the complaint by argument in an appellate brief).
