Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/57

 (internal quotation marks omitted); Feeney, 442 U.S. at 279 (internal quotation marks omitted). It instead requires the Board to act “at least in part ‘because of,’ not merely ‘in spite of,’ … adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279. The district court found that the “School Board did not have transgender students in mind when it originally established separate multi-stall restrooms for boys and girls,” which precludes a finding of discriminatory intent.

The decision of the Supreme Court in Bostock v. Clayton County, 140 S. Ct. 1731, is not to the contrary. To be sure, Bostock clarified that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” in the context of employment discrimination under Title VII. Id. at 1747; see also Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that discrimination based on gender nonconformity constitutes sex discrimination regardless of whether the victim is transgender or not). But this appeal concerns the converse question: whether discrimination on the basis of sex necessarily entails discrimination based on transgender status. Of course, a policy can classify on the basis of sex without also classifying on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, Bostock expressly disclaimed reaching any conclusion on the permissibility of sex-separated bathrooms and locker rooms. See 140 S. Ct. at 1753.