USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 19 of 150
respect[],” id., with respect to which persons must be “similarly situated,” City of Cleburne, 473 U.S. at 439, because biological sex is the sole characteristic on which the bathroom policy and the privacy interests guiding the bathroom policy are based. And biological sex also is the driving force behind the Supreme Court’s sex-discrimination jurisprudence. See, e.g., Nguyen, 533 U.S. at 73 (“The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific [to men and women].”); Virginia, 518 U.S. at 533 (“Physical differences between men and women, however, are enduring: ‘[T]he two sexes are not fungible … .’” (first alteration in original) (quoting Ballard v. United States, 329 U.S. 187, 193 (1946))); Frontiero, 411 U.S. at 686 (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”). As the Supreme Court has made clear: “To fail to acknowledge even our most basic biological differences … risks making the guarantee of equal protection superficial, and so disserving it.” Nguyen, 533 U.S. at 73.
Adams claims to be similarly situated to biological boys in the School District for purposes of the bathroom policy, even though Adams is not biologically male—the only characteristic on which the policy is based. Throughout the pendency of this case, Adams remained both biologically and anatomically identical to biological females—not males. Thus, in prohibiting Adams from using the male bathrooms, it can be argued that the School Board did not “treat[] differently persons who are in all relevant respects alike” for purposes of the Equal Protection Clause. Nordlinger, 505 U.S. at 10.
To argue otherwise, the dissent, like the district court, must assert that transgender status and gender identity are equivalent to biological sex. Indeed, this forms the foundation of the dissent’s attempt to frame this case not as a case about the constitutionality and legality of separating bathrooms based on biological sex but rather as a case about the purported unlawfulness of excluding Adams—who attended school as a biological female—from using the male bathroom because, as the dissent claims, Adams is a boy for purposes of the bathroom policy. But such an assertion is contrary to the Supreme Court’s
