USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 147 of 150
only one biological marker: their sex assigned at birth. Adams’s claim that the School District’s notion of what “sex” means is discriminatory is not foreclosed by the Title IX carveouts. See id.[1]
D. There is No Reason to Fear the Majority Opinion’s Slippery Slope Arguments.
The majority opinion warns that ruling for Adams would “have ramifications far beyond the bathroom door.” Majority Op. at 46. If we ruled for Adams, the majority opinion cautions, our decision would “transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities.” Id. at 49. One School Board witness expressed concern that, without the bathroom policy, “the football quarterback” could say “I feel like a girl today,” gain entry to the girls’ restroom, and harm female
- ↑ And no, my reading does not “swallow the carve-outs and render them meaningless.” Maj. Op. at 43 n.7. Rather, my reading recognizes the limits to the carveouts—they cannot provide carte blanche for educational institutions to set policies defining “sex” in a manner that discriminates against transgender students like Adams. This is why the majority opinion’s hypothetical of “a biological female student, who does not identify as transgender and who sued her school under Title IX to gain access to the male bathroom,” Maj. Op. at 42, is unenlightening. The majority is of course correct that “preventing the female student from using the male bathroom would constitute separation on the basis of sex.” Id. But the majority’s hypothetical case—where all biological markers of the female student point to one sex—falls squarely within the carveouts, and this case—for all the reasons I have just explained—does not. The majority’s hypothetical, based on its counterfactual assumption that sex is a single-factor label, is not a helpful analytical tool in this case.
