Charles R. Wilson

“ After considering a more scientific and medical perspective on biological sex, it is clear that the bathroom policy’s refusal to accept updated medical documentation is discriminatory on the basis of sex.
I. Biological Sex is Not Static
For argument’s sake, I adopt the Majority’s succinct definition of biological sex: sex based on chromosomal structure and anatomy at birth. Under this definition, assigning sex at birth is typically a non-issue. Any person who has been in a delivery room knows that doctors routinely and with little effort ascertain an infant’s biological sex. ”

“ 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. ”

“ 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. ”