USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 116 of 150
scrutiny, under which the state must provide an “exceedingly persuasive justification” for the classification. United States v. Virginia, 518 U.S. 515, 531 (1996) (internal quotation marks omitted). Other classifications are benign, and to those we apply “rational basis” review. Under rational basis review, the law or policy will be upheld if it is “rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440.
I analyze Adams’s equal protection claim in three parts. First, I show that the School District’s bathroom policy facially discriminates against transgender students.[1] Second, I offer two alternative reasons why heightened scrutiny applies. Third, I explain why the school bathroom policy of assigning children to a bathroom based only on their birth-assigned sex does not pass heightened scrutiny.
- 1. The Bathroom Policy Facially Discriminates Against Transgender Students.
Even though part of the School District’s bathroom policy is unwritten, its substance is not in dispute. The district court found that the policy “[i]ncorporat[ed] both” (1) “the long-standing unwritten School Board bathroom policy” and (2) “the Best Practices
- ↑ Because the policy facially discriminates against transgender students, we do not need to discuss discriminatory intent. Only when a law is neutral on its face but has a discriminatory impact does a plaintiff have to demonstrate discriminatory intent behind the policy or law. See generally Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
