USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 63 of 80
What Adams actually challenges is the requirement that students cannot use the bathrooms of the opposite sex, which long predates the provision that accommodates transgender students. It is this policy that “prohibit[s] … transgender students from using the restrooms matching their gender identity.” Id. at 14. Because this policy divides bathrooms by sex, not transgender status, it does not facially classify on the basis of transgender status.
The decision of the Supreme Court in Geduldig v. Aiello, 417 U.S. 484 (1974), is instructive. There, the Court held that a state insurance policy that excluded coverage for pregnancies did not classify on the basis of sex. Id. at 495–97. It explained that the classification at issue created two groups—pregnant and nonpregnant people. Id. at 496 n.20. Although “the first group is exclusively female,” the Court explained, “the second includes members of both sexes,” which revealed a “lack of identity” between pregnancy and sex. Id.; see also Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 271 (1993) (reaffirming this reasoning). This analysis applies with equal force here. The bathroom policy creates two groups—students who can use the boys’ bathroom and students who can use the girls’ bathroom. Both groups contain transgender students and non-transgender students, so a “lack of identity” exists between the policy and transgender status. Geduldig, 417 U.S. at 496 n.20.
63
