USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 60 of 150
Wilson, Circuit Judge, dissenting:
I concur fully with Judge Jordan’s analysis and agree that we should analyze the bathroom policy as a gender-based classification. I write separately, with his analysis in mind, to add that even accepting the Majority’s argument that the relevant factor is an individual’s biological sex, the policy is still discriminatory, and therefore we must engage in a robust Title IX and Equal Protection analysis.
Under the Majority’s rationale, the bathroom policy distinguishes between boys and girls on the basis of biological sex—“which the School Board determines by reference to various documents, including birth certificates, that students submit when they first enroll in the School District.” Maj. Op. at 4. Because the policy uses these same indicia for all students, according to the Majority, the policy is not discriminatory. See Maj. Op. at 31. Underlying this sex-assigned-at-matriculation bathroom policy, however, is the presumption that biological sex is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended documentation because a student’s sex does not change. This presumption is both medically and scientifically flawed. After considering a more scientific and medical perspective on biological sex, it is clear that the bathroom policy’s refusal to accept updated medical documentation is discriminatory on the basis of sex.
I. Biological Sex is Not Static
