Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 49 of 70 PageID 10727
statute there aimed to prevent teen pregnancy and “realistically reflect[ed] the fact that the sexes were not similarly situated” because only women could become pregnant. Id. at 469. Nguyen v. I.N.S., 533 U.S. 53 (2001) is distinguishable for the same reason. 533 U.S. at 59–64 (upholding statute that set different requirements for proving parenthood for men and for women because giving birth is inherent proof of motherhood). No such difference is relevant here.[1] Rather, it is his failure to act in conformity with his sex assigned at birth that is causing the School District to treat Adams differently. See Glenn, 663 F.3d at 1316 (holding in transgender employment case that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause”).
The School Board also relies on Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), one of a minority of cases to reject an Equal Protection claim by a transgender student regarding bathroom use, and Carcano v. McCrory, 203 F. Supp. 3d 615 (M.D. N.C. 2016), which likewise rejected an Equal Protection challenge brought by transgender students and an employee of a state
- ↑ As further support for their position that separating boys and girls based on “biological sex” is permissible, the School Board also points to language in the Supreme Court’s Virginia decision, which recognized that “[p]hysical differences between men and women … are enduring” and “the two sexes are not fungible.” See Doc. 173-1 at 35, 38 (quoting Virginia, 518 U.S. at 533). But here, as in Virginia, those differences are not relevant to the question before the Court. See Virginia, 518 U.S. at 519 (holding the Constitution’s equal protection guarantee required Virginia Military Institute (which had been a male-only institution) to admit female cadets).
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