USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 95 of 150
I begin by describing the School District’s longstanding unwritten policy. I next describe the Best Practices Guidelines. In discussing the Best Practices Guidelines, I also review evidence in the record about alternative bathroom policies adopted by other school districts. Last, I describe how the School District assigned students to the boys’ or girls’ bathrooms based on the students’ enrollment documents.
- 1. The Longstanding Unwritten Bathroom Policy and Its Use of the Term “Biological Sex”
The School District has long had an unwritten school bathroom policy under which boys use the boys’ restrooms, and girls use the girls’ restrooms, based on their “biological sex.” Doc. 192 at 14 (internal quotation marks omitted). “Biological sex” for purposes of the School District’s bathroom policy means birth-assigned sex—the sex a doctor assigns an infant in the moments after birth by examining the infant’s external genitalia.[1]
- ↑ The School Board did not define “biological sex.” It contextualized the term by using words like “physiological” or “anatomical” sex, but it did not explain what it meant by those words, either. Appellant’s En Banc Br. at 8. The district court found that “biological sex” as used in the bathroom policy meant birth-assigned sex. Doc. 192 at 19. And at oral argument, the School Board confirmed that, for purposes of the policy, “biological sex” meant birth-assigned sex. In using the term “biological sex,” then, the School Board refers to only one biological characteristic—a child’s “external genitalia” which “has historically been used to determine gender for purposes of recording a birth as male or female.” Id. at 6.
