Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 36 of 70 PageID 10714
the School Board to mean those whose sex assigned at birth is female--to use the girls’ bathrooms or gender-neutral bathrooms. But Adams identifies as a boy, is identified by others as a boy, is legally deemed by the state of Florida to be a boy, lives as a boy, uses the men’s restroom outside of the school setting, and is otherwise treated as a boy--except when it comes to his use of the school bathrooms. The School Board Attorney agreed that as a transgender boy, Adams is not treated the same as “biological boys” when it comes to using the restroom. Doc. 162 at Tr. 118. Thus, although the policy treats most boys and girls the same, it treats Adams differently because, as a transgender boy, he does not act in conformity with the sex-based stereotypes associated with the sex he was assigned at birth (female). “This policy is inherently based upon a sex-classification and heightened review applies.” Whitaker, 858 F.3d at 1051 (explaining that school bathroom policy which relied on sex listed on students’ birth certificates did not treat all boys and girls the same (and therefore violated the Equal Protection Clause) because transgender students, who fail to conform to sex-based stereotypes associated with their sex assigned at birth, are treated differently). As the Eleventh Circuit explained in Glenn, “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” which includes “perceived gender-nonconformity,” “a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause.” 663 F.3d at 1318–19. The School Board does not dispute that its bathroom
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