USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 117 of 150
Guidelines.” Doc. 192 at 19. All agree that the first component—the longstanding policy—provides that “only ‘biological boys’ may use the boys’ restroom and … only ‘biological girls’ may use the girls’ restroom.” Id. at 19 n.24. All agree that the second component—the Best Practices Guidelines—provides that “[t]ransgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.” Doc. 152-6 at 1.
Taking these findings together, two critical properties of the policy jump out. First, the bathroom policy singles out transgender students on its face. The Best Practices Guidelines provide that “transgender students” may use gender neutral restrooms and do not have to use the restrooms matching their birth-assigned sex. Second, in addition to referring to transgender students expressly, the bathroom policy categorically deprives transgender students of a benefit that is categorically provided to all cisgender students—the option to use the restroom matching one’s gender identity.
Let me explain this second point. The bathroom policy assigns “biological boys’” to boys’ restrooms, and “biological girls” to girls’ restrooms. The policy is exclusive in that only “biological boys”—those assigned male at birth—may use the boys’ restroom, and only “biological girls”—those assigned female at birth—may use the girls’ restroom. Recall that “transgender” persons “consistently, persistently, and insistently identif[y] as a gender different [from] the sex they were assigned at birth.” Doc. 192 at 7 (internal quotation marks omitted). If transgender students are “biologically
