USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 120 of 150
apply heightened scrutiny is based on its misconception that Adams challenges the legality of sex-separated bathrooms. In the majority opinion’s view, a policy providing for sex-separated bathrooms triggers heightened scrutiny. Because Adams never challenged the legality of sex-separated bathrooms and instead challenged his exclusion from the boys’ restroom based on his status as a transgender boy, it is necessary to view this case through that lens and therefore ask whether the policy requiring Adams’s exclusion from the boys’ restroom triggers heightened scrutiny. Next, I flesh out two of Adams’s theories for why heightened scrutiny applies.
- i. Heightened Scrutiny Applies under Bostock v. Clayton County’s Rationale.
One of Adams’s theories is that his exclusion from the boys’ restroom was “based on sex” under the logic of Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Appellee’s En Banc Br. at 31. Bostock did not purport to answer any constitutional question. Instead, it interpreted Title VII by exploring the language and meaning of the statute as originally enacted. But that surface-level distinction is of no moment, Adams argues, because it is Bostock’s logic—apart from any Title VII-specific language—that requires us to find there has been a sex-based classification here. I agree with Adams’s reading of Bostock.
In Bostock, the Supreme Court considered whether Title VII barred employers from firing employees because they were gay or transgender. See Bostock, 140 S. Ct. at 1737. The Supreme Court began with the text of Title VII, which prohibits discrimination in
