USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 87 of 150
With the role of gender identity in determining biological sex thus obscured, the majority opinion next focuses on the wrong question: the legality of separating bathrooms by sex. Adams has consistently agreed throughout the pendency of this case—in the district court, on appeal, and during these en banc proceedings—that sex-separated bathrooms are lawful. He has never challenged the School District’s policy of having one set of bathrooms for girls and another set of bathrooms for boys. In fact, Adams’s case logically depends upon the existence of sex-separated bathrooms. He—a transgender boy—wanted to use the boys’ restrooms at Nease High School and sought an injunction that would allow him to use the boys’ restrooms.
When the majority opinion reaches Adams’s equal protection claim, these errors permeate its analysis. So does another: the majority overlooks that the School District failed to carry its evidentiary burden at trial. Everyone agrees that heightened scrutiny applies. The School District therefore bore the evidentiary burden of demonstrating a substantial relationship between its bathroom policy and its asserted governmental interests. Yet the School District offered no evidence to establish that relationship.
Next, the majority opinion rejects Adams’s Title IX claim. Here, too, the majority opinion errs. Even accepting the majority opinion’s premise—that “sex” in Title IX refers to what it calls a “biological” understanding of sex—the biological markers of Adams’s sex were but-for causes of his discriminatory exclusion from the boys’ restrooms at Nease High School. Title IX’s statutory and
