USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 28 of 150
accident of birth” to be a biological female—is allowed access to bathrooms reserved for those who were “determined solely by the accident of birth” to be biologically male. Thus, we are unpersuaded by the dissent’s argument that the district court could make any factual finding (that would not constitute clear error) to change an individual’s immutable characteristic of biological sex, just as the district court could not make a factual finding to change someone’s immutable characteristic of race, national origin, or even age for that matter. Simply put, and contrary to the dissent’s claims, this is a case about the constitutionality and legality of separating bathrooms by biological sex because it involves an individual of one sex seeking access to the bathrooms reserved for those of the opposite sex. Adams’s gender identity is thus not dispositive for our adjudication of Adams’s equal protection claim.
In sum, the bathroom policy does not unlawfully discriminate on the basis of biological sex.
2. The Bathroom Policy Does Not Discriminate Against Transgender Students
We now turn to whether the School Board’s policy, which does not unlawfully discriminate on the basis of sex, discriminates against transgender students. In finding a violation of the Equal Protection Clause, the district court never properly conducted the requisite intermediate scrutiny analysis and, instead, concluded that “although the policy treats most boys and girls the same, it treats Adams differently because, as a transgender boy, he does not act in conformity with the sex-based stereotypes associated with”
