USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 29 of 150
biological sex. There are two flaws in the district court’s conclusion.
First, the bathroom policy facially classifies based on biological sex—not transgender status or gender identity. Transgender status and gender identity are wholly absent from the bathroom policy’s classification. And both sides of the classification—biological males and biological females—include transgender students. To say that the bathroom policy singles out transgender students mischaracterizes how the policy operates.
Both Adams and the dissent rely on Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to advance this faulty reasoning. Jill Pryor Dis. Op. at 35–37. Bostock involved employment discrimination under Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq.—specifically, various employers’ decisions to fire employees based solely on their sexual orientations or gender identities. Id. at 1737–38. As a preliminary matter, the Supreme Court expressly declined to address the issue of sex-separated bathrooms and locker rooms, stating:
Under Title VII, … we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
