USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 32 of 150
stereotype. As this opinion has explained, the Supreme Court has repeatedly recognized the biological differences between the sexes by grounding its sex-discrimination jurisprudence on such differences. 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.”); 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))). And the biological differences between males and females are the reasons intermediate scrutiny applies in sex-discrimination cases in the first place. See Frontiero, 411 U.S. at 686 (“[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility.’” (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972))). To say that the bathroom policy relies on impermissible stereotypes because it is based on the biological differences between males and females is incorrect. See Nguyen, 533 U.S. at 73 (“Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real.”).
At most, Adams’s challenge amounts to a claim that the bathroom policy has a disparate impact on the transgender students in the School District. And a disparate impact alone does not
