Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 37 of 70 PageID 10715
policy makes distinctions based on sex and is subject to intermediate scrutiny;[1] that
- ↑ To the extent the School Board contends Adams must make a threshold showing of discriminatory intent to state an Equal Protection claim (Doc. 173 at 34), that may be a misreading of the circumstances here. See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 273–74 (1979) (explaining that if a statute is neutral on its face and its classifications are not based on gender, the court must inquire whether its effect nonetheless reflects invidious gender-based discrimination); see also Morrissey v. United States, 871 F.3d 1260, 1268–72 (11th Cir. 2017) (examining facially neutral tax law and finding homosexual taxpayer could not show that different treatment was motivated by an intent to discriminate). Here, by contrast, defendant agrees that its bathroom policy makes distinctions based on sex and is subject to intermediate scrutiny. Doc. 173-1 (Defendant’s proposed findings of fact and conclusions of law) at 37. Although the School Board did not have transgender students in mind when it originally established separate multi-stall restrooms for boys and girls, it has since become aware of the need to treat transgender students the same as other students and does so in all other respects, except when it comes to the bathroom policy: A student whose sex assigned at birth is female is subject to discipline if the student identifies as a male and uses the boys’ restroom, whereas the same student would be free to use the boys’ restroom if his sex assigned at birth was male or if he agreed to act in conformity with the School Board’s expectations and use the girls’ restroom. Thus, even if it started out that way, the school bathroom policy is no longer a neutral rule because it applies differently to transgender students, as the School Board itself acknowledges. See Romer v. Evans, 517 U.S. 620, 634 (1996) (noting that class separation raises an “inevitable inference” of animosity toward the affected class); Doe 1 v. Trump, 275 F. Supp. 3d at 209–10 (applying intermediate scrutiny to Equal Protection Claim brought by current and aspiring transgender military service members because the policy to exclude them “inherently discriminates” against them); Stone, 280 F. Supp. 3d at 768 (finding transgender service members met threshold of showing “intentional or purposeful discrimination” because there was “no doubt” that policy set apart transgender service members for different treatment). See also A.H., 290 F. Supp. 3d at 331, n.5 (finding that to the extent plaintiff was required to allege intentional discrimination, she had done so by alleging that the principal said the school wasn’t ready to handle transgender students in bathrooms and that his job was to protect other students from plaintiff). The School Board’s positions here echo those pled in A.H. and, to the extent it’s necessary, the Court finds Adams has made the threshold showing of intentional discrimination.
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