USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 138 of 150
into question whether the sex-based classification is substantially related to any important interest. See Whitaker, 858 F.3d at 1054 (observing that a transgender student could use the bathroom matching his or her gender identity if he or she simply chose to register with the school district using a passport rather than a birth certificate, which demonstrated “the arbitrary nature of the policy”); Grimm, 972 F.3d at 620 (Wynn, J., concurring) (observing that the bathroom policy at issue “is arbitrary and provides no consistent reason” for assigning certain students to certain bathrooms). And that makes sense: how can the School District’s policy be substantially related to a legitimate state interest if the School District does not even care enough about the policy to administer it effectively?[1]
The School District’s reliance on a student’s enrollment documents gives rise to this sort of problem—the School District administers the policy in an arbitrary and haphazard way. As the School District admitted, if a transgender student legally changed his or her birth certificate and other enrollment documents to
- ↑ The majority opinion asserts that Adams, the appellee, waived this line of argument by failing to raise it in the district court or his opening brief to the panel. See Majority Op. at 8–10 & n.2. The majority opinion is mistaken. “Parties can most assuredly waive or forfeit positions and issues on appeal, but not individual arguments.” Hi-Tech Parm. Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (alteration adopted) (internal quotation marks omitted). Adams did not waive this argument, but even if he had, we may affirm the district court on any basis supported by the record. Wetherbee v. S. Co., 754 F.3d 901, 905 (11th Cir. 2014).
