Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/56

 female,” the Court explained, “the second includes members of both sexes,” which revealed a “lack of identity” between pregnancy and sex. Id.; see also Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 271 (1993) (reaffirming this reasoning). This analysis applies with equal force here. The bathroom policy creates two groups—students who can use the boys’ bathroom and students who can use the girls’ bathroom. Both groups contain transgender students and non-transgender students, so a “lack of identity” exists between the policy and transgender status. Geduldig, 417 U.S. at 496 n.20.

At most, the policy has a disparate impact on transgender students, which is not enough to create a sex-based classification. Facially neutral policies trigger intermediate scrutiny only if “invidious gender-based discrimination” motivated them. ''Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.'', 429 U.S. 252, 265 (1977) (“Proof of … discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). Adams cannot argue that a discriminatory purpose against transgender students motivated the policy. Although the district court found that the Board acted with discriminatory intent because it failed to update its policies when it became “aware of the need to treat transgender students the same as other students,” the Supreme Court has repeatedly held that “[d]iscriminatory purpose … implies more than … awareness of consequences.” E.g., Bray, 506 U.S. at 760