Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 35 of 70 PageID 10713
F.3d 1034, 1050–52 (7th Cir. 2017) (determining school district decision to exclude transgender students from bathrooms matching their gender identity was based on sex stereotyping, and thus subject to heightened scrutiny[1]); M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F.Supp. 3d 704, 718-19 (D. Md. 2018) (reviewing Glenn and Whitaker and determining that heightened scrutiny applied in transgender school bathroom case); A.H. v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321, 331 (M.D. Pa. 2017) (holding intermediate scrutiny applied in transgender school bathroom case); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017) (same); Stone v. Trump, 280 F. Supp. 3d 747, 768 (D. Md. 2017) (applying intermediate scrutiny to decision to exclude transgender individuals from the military); Doe 1 v. Trump, 275 F. Supp. 3d. 167, 210 (D.D.C. 2017) (same).
The School Board’s bathroom policy cannot be stated without referencing sex-based classifications, as it requires what it terms “biological boys”--intended by the School Board to mean those whose sex assigned at birth is male--to use the boys’ bathrooms or gender-neutral bathrooms, and it requires “biological girls”--intended by
- ↑ As explained by the Eleventh Circuit in Glenn, “heightened” scrutiny includes both intermediate and strict scrutiny. Glenn, 663 F.3d at 1316, n.4 (citing Clark v. Jeter, 486 U.S. 456, 461 (1988)). The “heightened” scrutiny test applied in Whitaker is the same as the “intermediate” scrutiny test applied in Glenn. Though Adams argued that strict scrutiny might apply here, the Court is not aware of any transgender bathroom case that has applied strict scrutiny, reserved for “classifications pertaining to race or national origin or to those affecting certain fundamental rights.” Id. (citing Clark, 486 U.S. at 461).
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