USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 119 of 150
corresponding to their gender identities. Unlike in Geduldig, no “benefits of the [policy] accrue to” transgender students. 417 U.S. at 496 n.20.
Because the bathroom policy facially discriminates against transgender students, I next ask what implications that classification carries for the Equal Protection Clause—namely, what level of scrutiny is appropriate given the bathroom policy’s classification of transgender versus cisgender students.
- 2. The Bathroom Policy Contains a Sex-Based Classification, Triggering Heightened Scrutiny.
This case presents a cornucopia of different and sometimes overlapping theories for why the bathroom policy’s classification between transgender and cisgender students is a “sex-based classification.” Adams presents us with at least six theories.[1] The School District and the majority opinion rely on a seventh.[2]
Although the majority and I agree that heightened scrutiny applies to the bathroom policy, the majority opinion’s decision to
- ↑ Adams argues that heightened scrutiny applies because: (1) the policy cannot be stated without referencing sex-based classifications; (2) the bathroom policy excludes him on the basis of sex; (3) the bathroom policy relies on impermissible stereotypes; (4) the policy creates two classes of transgender students; (5) transgender individuals constitute a quasi-suspect class; (6) even if the policy is not facially discriminatory, it deliberately targets and disparately impacts transgender individuals.
- ↑ The majority opinion and the School District contend that heightened scrutiny applies simply because the bathroom policy separates the two sexes.
