USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 64 of 150
II. The Bathroom Policy is Discriminatory on Biological Sex Grounds
Despite the scientific reality that intersex individuals exist and develop changes in the presentation of their biological sex over time, the School Board policy refuses to accept changes to gender or sex documentation after matriculation. The student with 5-alpha reductase who develops male genitalia and discovers male chromosomes would be barred from updating their biological sex documentation and, per the policy, remains bound to continue using the female restroom despite having medically documented male genitalia.
Thus, these intersex students, unlike other students, cannot use the bathroom associated with their medically assigned biological sex. No other category of student is required to use the bathroom associated with the opposite biological sex, and therefore such a policy is plainly discriminatory.
All of this makes the Majority’s deployment of the “proverbial straw man” all the more troubling. Jordan Diss. Op. at 13. By leading the court down this path of “biological sex,” misconstruing Adams’s argument the whole way, the Majority interprets the School Board’s policy to avoid one constitutional challenge—that the policy is discriminatory on the basis of gender—while inviting another—that the policy is discriminatory on the basis of sex.
III. The Bathroom Policy Does Not Cure the School Board’s Privacy Concerns
