USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 112 of 150
so disserving it.”). None of the principles in the cases the majority opinion cites is at issue, though. This case deals with a preliminary issue—what it means to be biologically male or female “by the accident of birth,” Frontiero, 411 U.S. at 686—and, more importantly, with an issue these cases did not address—the rights of transgender people. No matter how many times the majority says otherwise, this case is not simply about whether there are differences between men and women.
The majority opinion uses the above counterfactuals to reframe the primary issue in this case from whether the bathroom policy discriminates against transgender students to the legality of sex-separated bathrooms. See Maj. Op. at 11 (“We disagree with Adams’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students.” (emphasis added)). But Adams’s case is not about that.
Adams’s position in this litigation—from his operative complaint through these en banc proceedings—has always been that his exclusion, as a transgender boy, from the boys’ restrooms at Nease High School violated the Equal Protection Clause and Title IX. He sought an injunction that would permit him to use the boys’ restrooms at school. Far from wanting to eliminate sex-separated bathrooms, Adams’s case logically depends on their existence: he simply wanted to use the boys’ restrooms. See Appellee’s En Banc Br. at 22 (“Defendant’s policy of separating boys and girls in restrooms … is not at issue … . Instead, [Adams] challenges Defendant’s decision to treat him differently from other boys[.]”). This
