USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 82 of 150
18-13592
Rosenbaum, J., Dissenting
1
Rosenbaum, Circuit Judge, Dissenting:
My colleagues Judge Jill Pryor and Judge Jordan have written excellent dissents explaining why the district court’s order here should be affirmed. I join Judge Jordan’s dissent in its entirety and Judge Jill Pryor’s dissent’s equal-protection analysis.[1] I write separately only to emphasize one point that Judge Jill Pryor already persuasively makes: the Majority Opinion’s misplaced suggestions that affirming the district court’s order on equal-protection grounds would require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities must necessarily be upheld are wrong.[2]
- ↑ As Judge Jordan notes, see Jordan Dissent at 2 n.1, the district court awarded Drew the same damages on both his equal-protection and Title IX claims because it found that the injuries arising out of these violations were “identical” and Adams was not entitled to double damages. See D.E. 192 at 68 n.58. Because affirming on Adams’s equal-protection claim is enough to uphold the judgment, I do not address the Title IX claim.
- ↑ I note that Judge Lagoa’s special concurrence limits itself to the Title IX analysis and does not discuss the equal-protection analysis. For good reason. For the reasons I explain in this dissent, none of the arguments Judge Lagoa asserts in her special concurrence have any application in the equal-protection context. Judge Lagoa’s concurrence, which singles out the Title IX analysis for attack, implicitly concedes that its reasoning does not apply in the equal-protection context. That is so because, as I explain, equal-protection analysis has a limiting principle—the factual record. So affirming the district court’s equal-protection conclusion here would not require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities (and sports) must be upheld.
