USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 113 of 150
case is, and always has been, about whether Adams’s exclusion from the boys’ bathrooms under the School District’s bathroom policy violated the Equal Protection Clause or Title IX. See Doc. 192 at 47 (“This case is not about eliminating sex separate bathrooms; it is only about whether to allow a transgender boy to use the boys’ bathroom.”). It is not, and has never been (again, no matter how many times the majority opinion says it), about whether the School District can maintain separate bathrooms for boys and girls.
A hallmark of the federal judiciary is its passive nature—we only decide the issues presented to us by the parties. See The Federalist No. 78 (Alexander Hamilton) (asserting that “the judiciary … will always be the least dangerous [branch of government]” because it “can take no active resolution” of social issues). As part of our commitment to remain “neutral arbiter[s] of matters the parties present,” we follow the party presentation principle and “rely on the parties to frame the issues for decision.” United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (internal quotation marks omitted). We “wait for cases to come to [us], and when cases arise,” we “normally decide only questions presented by the parties.” Id. (internal quotation marks omitted) (alteration adopted). We do not enter the fray uninvited to weigh in on divisive issues. Yet that is exactly what the majority does.
In sum, two errors permeate the majority opinion, infecting the entirety of its analysis. First, the majority opinion misuses the term “biological sex,” contradicting unchallenged findings of fact
