Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/14

 school district had “a legitimate interest in ensuring bathroom privacy rights are protected”);, 469 U.S. 325, 338–39, 105 S. Ct. 733, 740–41 (1985) (observing, in the Fourth Amendment context, that a “search of a child’s person” at school “is undoubtedly a severe violation of subjective expectations of privacy”); , 402 F.3d 598, 604 (6th Cir. 2005) (noting that “[s]tudents of course have a significant privacy interest in their unclothed bodies” against strip searches at school).

Beyond this, we assume the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls or men and women. Mr. Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.

The School Board has demonstrated no substantial relationship between excluding Mr. Adams from the communal boys’ restrooms and protecting student privacy. We see three constitutional infirmities with the School District’s bathroom policy. First, the policy is administered arbitrarily. The policy relies upon a student’s enrollment documents to determine sex assigned at birth. This