USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 128 of 150
political process.”). The fourth factor likewise breaks heavily in favor of concluding that transgender individuals constitute a quasi-suspect class.
Like the Fourth Circuit in Grimm, I have no trouble concluding that transgender individuals constitute a quasi-suspect class. Adams’s transgender status provides an alternative reason why heightened scrutiny applies.
- 3. The Policy Does Not Survive Heightened Scrutiny.
I turn now to why the School District’s bathroom policy fails heightened scrutiny. Under the heightened scrutiny test, a sex classification “fails unless it is substantially related to a sufficiently important governmental interest.” City of Cleburne, 473 U.S. at 441 (citing Hogan, 458 U.S. at 721). “[T]he means adopted … [must be] in substantial furtherance of important governmental objectives. The fit between the means and the important end [must be] ‘exceedingly persuasive.’” Nguyen, 533 U.S. at 70 (quoting Virginia, 518 U.S. at 533). “The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions … .” Hogan, 458 U.S. at 725–26. “The burden of justification is demanding and it rests entirely” on the School District. Virginia, 518 U.S. at 533. As the defender of the sex-based classification, the School Board must demonstrate that its bathroom policy (1) advances an important governmental interest and (2) is in substantial furtherance of that interest. Hogan, 458 U.S. at 724.
