USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 115 of 150
There are three tiers of “scrutiny” we apply when analyzing equal protection claims. If the state[1] has made a classification based on race, we apply strict scrutiny. See Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). “Laws or regulations almost never survive” our exacting analysis under this test. Otto v. City of Boca Raton, 981 F.3d 854, 962 (11th Cir. 2020). If the classification is based on sex, we apply heightened
- ↑ There is no dispute that the School Board is a state actor for the purposes of this lawsuit.
its bathroom policy, apparently because Adams—unlike the “biological boys” under the policy—was not assigned male at birth. Majority Op. at 18–20 n.6. 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.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 (4th Cir. 2020). “The overwhelming thrust of everything in the record … is that [Adams] was similarly situated to other [cisgender] boys, but was excluded from using the boys restroom facilities based on his sex-assigned-at-birth.” Id. “Adopting the [School District’s] framing of [Adams’s] equal protection claim here would only vindicate [its] own misconceptions, which themselves reflect stereotypic notions.” Id. (internal quotation marks omitted).
And, once again, the majority opinion’s reference to Supreme Court cases addressing the physical differences between men and women misses the point: those cases do not define what it means to be a man or a woman, so they do not demonstrate that “biological sex” as the majority opinion sees that term—sex assigned at birth, or sex assigned at birth and chromosomal structure—was the “driving force behind” the Court’s sex-discrimination jurisprudence. Maj. Op. at 18 n.6. We are in new territory here, despite the majority opinion’s refusal to explore it.
