USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 27 of 150
restrooms between the sexes.” (Emphasis added). In holding the bathroom policy unconstitutional, the district court never made a finding that Adams is a “biological boy,” as the dissent claims, which is the classification that the School Board uses to restrict access to the male bathrooms and the classification that Adams is challenging. Jill Pryor Dis. Op. at 29 n.10. The district court looked to Adams’s gender identity—not Adams’s biological sex—for purposes of evaluating the bathroom policy. And even the dissent acknowledges, as it must, that gender identity is different from biological sex. Id. at 32 (citing the district court’s order to explain “that ‘transgender’ persons ‘consistently, persistently, and insistently identif[y] as a gender different [from] the sex they were assigned at birth’”).
Thus, despite the dissent’s suggestion, the district court did not make a finding equating gender identity as akin to biological sex. Nor could the district court have made such a finding that would have legal significance. To do so would refute the Supreme Court’s longstanding recognition that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion); see also Immutable, Oxford English Dictionary (2d ed. 1989) (“Not mutable; not subject to or susceptible of change; unchangeable, unalterable, changeless.”). Regardless of Adams’s genuinely held belief about gender identity—which is not at issue—Adams’s challenge to the bathroom policy revolves around whether Adams, who was “determined solely by the
