USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 118 of 150
female” under the policy, their gender identity is necessarily male, and vice versa. It follows that the School District’s bathroom policy facially bans all transgender students from using the restrooms corresponding to their gender identity.
In contrast to transgender students, all cisgender students are permitted to use the restroom matching their gender identity. The policy, therefore, facially discriminates against transgender students by depriving them of a benefit that is provided to all cisgender students. It places all transgender students on one side of a line, and all cisgender students on the other side. The School District cannot hide beyond facially neutral-sounding terms like “biological sex.” As the Supreme Court has observed, “neutral terms can mask discrimination that is unlawful.” Nguyen, 533 U.S. at 64.
The majority opinion contends that there is a “lack of identity” problem here, citing the fact that the School District’s classifications of “biological males” who may use the boys’ restrooms and “biological females” who may use the girls’ restrooms both contain transgender students. Maj. Op. at 30–31 (citing Geduldig v. Aiello, 417 U.S. 484 (1974)). I do not see it that way. The School District’s policy facially discriminates against transgender students; thus, the class we are concerned with is transgender students. On one side of the policy’s line, cisgender students may use the bathrooms corresponding with their gender identities. On the other side of the line, transgender students may not. The majority opinion, in concluding otherwise, overlooks that under the policy only transgender students are denied the benefit of using the restrooms
