USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 64 of 80
At most, the policy has a disparate impact on transgender students, which is not enough to create a sex-based classification. Facially neutral policies trigger intermediate scrutiny only if “invidious gender-based discrimination” motivated them. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of … discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). Adams cannot argue that a discriminatory purpose against transgender students motivated the policy. Although the district court found that the Board acted with discriminatory intent because it failed to update its policies when it became “aware of the need to treat transgender students the same as other students,” the Supreme Court has repeatedly held that “[d]iscriminatory purpose … implies more than … awareness of consequences.” E.g., Bray, 506 U.S. at 760 (internal quotation marks omitted); Feeney, 442 U.S. at 279 (internal quotation marks omitted). It instead requires the Board to act “at least in part ‘because of,’ not merely ‘in spite of,’ … adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279. The district court found that the “School Board did not have transgender students in mind when it originally established separate multi-stall restrooms for boys and girls,” which precludes a finding of discriminatory intent.
The decision of the Supreme Court in Bostock v. Clayton County, 140 S. Ct. 1731, is not to the contrary. To be sure, Bostock clarified that “discrimination
64
