USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 31 of 150
Women’s Health Clinic, 506 U.S. 263, 271 (1993) (reaffirming this reasoning).
Our conclusion that there is a “lack of identity” between the bathroom policy and transgender status is informed by the Supreme Court’s reasoning in Geduldig. In that case, the Supreme Court held that a state insurance program that excluded coverage for certain pregnancy-related disabilities did not classify on the basis of sex. Geduldig, 417 U.S. at 486, 496–97. Because the insurance program created two groups—a group that contained only females and a group that contained males and females—there was a “lack of identity” between the exclusion of those female-related disabilities from coverage and discrimination on the basis of being female since “[t]he fiscal and actuarial benefits of the program … accrue[d] to members of both sexes.” Id. at 496 n.20. Like the insurance program in Geduldig, the School Board’s bathroom policy does not classify students based on transgender status because a “lack of identity” exists between transgender status and a policy that divides students into biological male and biological female groups—both of which can inherently contain transgender students—for purposes of separating the male and female bathrooms by biological sex.
Second, the contention that the School Board’s bathroom policy relied on impermissible stereotypes associated with Adams’s transgender status is wrong. The bathroom policy does not depend in any way on how students act or identify. The bathroom policy separates bathrooms based on biological sex, which is not a
