USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 65 of 150
The existence of intersex students also reveals how nonsensical the Majority’s justification for the bathroom policy is. Despite the Majority artfully sidestepping the constitutional analysis, they still devote many pages of their opinion to explaining that the policy alleviates “privacy, safety, and welfare concerns.” See Maj. Op. at 5. Without belaboring the point, intersex students do exist; they have or can develop unexpected genitalia. Biological females may still have male genitalia in the female restroom, and vice versa. A sex-assigned-at-matriculation bathroom policy cannot prevent that phenomenon. The case of intersex students therefore proves that a privacy concern rooted in a thin conception of biological sex is untenable.
I do not raise the existence of intersex students as a fantastical hypothetical, but instead as a legitimate issue for consideration. Our sister circuit recently had to consider how intersex students disrupt the underlying premise for bathroom policies. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 615 (4th Cir. 2020), cert. denied, 141 S. Ct. 2878 (2021) (“As demonstrated by the record and amici such as interACT, the Board’s policy is not readily applicable to other students who, for whatever reason, do not have genitalia that match the binary sex listed on their birth certificate … .”).[1] Judge Wynn, in his concurrence, further reasoned:
[i]f the Board’s concern [justifying the policy] were truly that individuals might be exposed to those with
- ↑ InterACT is an intersex advocacy organization.
