USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 30 of 150
Id. at 1753. And the instant appeal is about schools and children—and the school is not the workplace. See, e.g., Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999) (“Courts, moreover, must bear in mind that schools are unlike the adult workplace.”); id. at 675 (Kennedy, J., dissenting) (noting the “differences between children and adults, peers and teachers, schools and workplaces” and that “schools are not workplaces and children are not adults”).
But even holding those preliminary points aside, Bostock does not resolve the issue before us. While Bostock held that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex,” 140 S. Ct. at 1747, that statement is not in question in this appeal. This appeal centers on the converse of that statement—whether discrimination based on biological sex necessarily entails discrimination based on transgender status. It does not—a policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, while the bathroom policy at issue classifies students on the basis of biological sex, it does not facially discriminate on the basis of transgender status. Because the bathroom policy divides students into two groups, both of which include transgender students, there is a “lack of identity” between the policy and transgender status, as the bathroom options are “equivalent to th[ose] provided [to] all” students of the same biological sex. See Geduldig v. Aiello, 417 U.S. 484, 496–97 & n.20 (1974); see also Bray v. Alexandria
