Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/55

 The majority’s conclusion that the school policy classifies on the basis of sex because it “singles out transgender students” is both central to its analysis and wrong. Id. The majority opinion reaches this incorrect conclusion by pointing to a provision of the school policy that does not have that effect. The majority opinion says the school policy targets transgender students because of the following provision: “Transgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.” Id. But this provision only offers the option of using gender-neutral bathrooms as an alternative to the bathroom that matches a child’s sex. It is an accommodation for transgender students, not a special burden. What Adams actually challenges is the requirement that students cannot use the bathrooms of the opposite sex, which long predates the provision that accommodates transgender students. It is this policy that “prohibit[s] … transgender students from using the restrooms matching their gender identity.” Id. at 14. Because this policy divides bathrooms by sex, not transgender status, it does not facially classify on the basis of transgender status.

The decision of the Supreme Court in Geduldig v. Aiello, 417 U.S. 484 (1974), is instructive. There, the Court held that a state insurance policy that excluded coverage for pregnancies did not classify on the basis of sex. Id. at 495–97. It explained that the classification at issue created two groups—pregnant and nonpregnant people. Id. at 496 n.20. Although “the first group is exclusively