Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 38 of 70 PageID 10716
is the standard the Court will apply.[1]
Under the intermediate scrutiny standard, the School Board must show that “‘its gender classification is substantially related to a sufficiently important government interest.’” Glenn, 663 F.3d at 1316 (quoting Cleburne, 473 U.S. at 441). The justification for its policy must be “exceedingly persuasive.” United States v. Virginia, 518 U.S. 515, 532–33 (1996). “Moreover, the classification must substantially serve an important governmental interest today, for in interpreting the equal protection guarantee, [the Supreme Court has] recognized that new insights and societal understandings can reveal unjustified inequality that once passed unnoticed and
- ↑ Because of the School Board’s concession and the Eleventh Circuit’s clear statement in Glenn, the Court has no occasion to engage in the further analysis many other transgender bathroom cases have which additionally considered whether transgender people are a quasi-suspect class, deserving of heightened scrutiny per se. See, e.g., Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 749–50 (E.D. Va. 2018) (concluding transgender individuals are a quasi-suspect class) M.A.B., 286 F. Supp. 3d at 719–22 (same); Bd of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850, 872–74 (S.D. Ohio 2016) (same); Evancho, 237 F. Supp. 3d at 288–89 (finding “all the indicia” supported application of intermediate scrutiny to classification involving transgender status); cf., Johnston v. Univ. of Pittsburgh, 97 F. Supp. 3d 657, 668 (W.D. Pa. 2015) (declining to recognize transgender status as a quasi-suspect class because neither the Supreme Court nor the Third Circuit had yet done so). The Third Circuit’s recent decision in Doe v. Boyertown Area School District, though not an Equal Protection Clause case, suggests the Third Circuit would likely accord quasi-suspect class status to transgender individuals. 893 F.3d 179, 184 (3d Cir. 2018) (finding policies that exclude transgender individuals from facilities consistent with their gender identity have detrimental effects on their physical and mental health, safety and well-being, citing high rates of suicide, homelessness, and other problems afflicting transgender people).
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