USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 148 of 150
students. Doc. 161 at 213. For at least three reasons, the majority opinion’s slippery-slope predictions are unfounded.
First, most of the majority opinion’s concerns, and the concerns of the School District, have to do with gender fluid individuals—people who are not transgender or cisgender, but who instead, according to the record, have a flexible view of gender that “changes between male and female.” Doc. 192 at 17. This case has no bearing on the question how to assign gender fluid individuals to sex-separated bathrooms, though. The School District’s bathroom policy categorically bans only transgender students—defined as those who “consistently, persistently, and insistently” identify as one gender—from using the restroom that matches their gender identity. Id. at 47 (internal quotation marks omitted). By its plain terms, the policy simply does not apply to gender fluid individuals. So, for today, we can set aside the concerns about gender fluidity.
Second, we could affirm the district court’s judgment on Adams’s equal protection claim based on the School District’s evidentiary failures alone. The School District stipulated that this is a heightened scrutiny case, but it failed to submit any evidence to establish a “substantial relationship” between the bathroom policy and student privacy or safety. Notably, although Adams presented scientific expert testimony, the School District chose not to call its experts to rebut that evidence. Affirming the district court’s judgment in this narrow way would not prevent other school districts from relitigating this issue, so long as they brought evidence to court with them. But the majority has rejected that approach.
