Jill Anne Pryor

“ In the majority opinion’s view, a policy providing for sex-separated bathrooms triggers heightened scrutiny. Because Adams never challenged the legality of sex-separated bathrooms and instead challenged his exclusion from the boys’ restroom based on his status as a transgender boy, it is necessary to view this case through that lens and therefore ask whether the policy requiring Adams’s exclusion from the boys’ restroom triggers heightened scrutiny. ”

“ 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. ”

“ By seeking to compare Adams’s treatment under the policy to that of “biological girls,” rather than to that of cisgender boys, the School District (and in turn the majority opinion) reveals its own bias: “it believes that [Adams’s] gender identity is a choice, and it privileges sex-assigned-at-birth over [his] medically confirmed, [biologically rooted,] persistent and consistent gender identity.” ”

“ Adams sought only to be treated like any other boy. He asked for, and the district court awarded, an injunction that prevented the School District from barring Adams from the boys’ bathroom, not from having sex-separated bathrooms. The majority opinion employs stereotypic ideas and assumptions in an attempt to persuade readers that admitting transgender students into the bathrooms corresponding with their consistent, persistent, and insistent biological gender identity will result in the elimination of sex-separated bathroom facilities. ”

“ First, most of the majority opinion’s concerns, and the concerns of the School District, have to do with gender fluid individuals—people who are not transgender or cisgender, but who instead, according to the record, have a flexible view of gender that “changes between male and female.” ”

“ Putting these concepts together, Adams is a transgender boy because his gender identity—male—is different from his birth-assigned sex—female. When a person is not transgender, meaning his or her birth-assigned sex and gender identity align, that person is “cisgender.” ”

“ Plus, to adopt Judge Lagoa’s concerns is to deny the myriad ways in which transgender girls and women are disadvantaged in athletics, further casting doubt on any fears that transgender athletes will overwhelmingly dominate, and somehow spoil, girls’ sports. ”

“ A hallmark of the federal judiciary is its passive nature—we only decide the issues presented to us by the parties. See The Federalist No. 78 (Alexander Hamilton) (asserting that “the judiciary ... will always be the least dangerous [branch of government] ” because it “can take no active resolution” of social issues) . ”

“ Bostock, 140 S. Ct. at 1739. ↑ In a special concurrence, Judge Lagoa writes that permitting “sex” under Title IX to include gender identity would require that institutions allow transgender girls to participate in girls’ sports. She worries that such integration threatens to undermine the progress girls and women have made via participation in Title IX programs. See Lagoa Concurring Op. at 2. But there is no empirical data supporting the fear that transgender girls’ participation in girls’ sports in any way undermines the experience and benefits of sports to cisgender girls. ”

“ Fourth and finally, we must determine whether transgender individuals are a minority class lacking in political power. The district court found that “0.6 percent of the adult population” is transgender. ”

“ It is possible for the same event to have more than one but-for cause. Id. Putting these concepts together, we ask whether Adams’s discriminatory exclusion from the boys’ restroom at Nease High School under the bathroom policy would not have happened but for the biological markers of his sex. ”

“ Indeed, something as simple as being left-handed may offer a significant competitive advantage in some sports, and yet we do not handicap or ban left-handed girls in Title IX-funded programs. See Steph Yin, Do Lefties Have an Advantage in Sports? ”