Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/19

 record. To satisfy the Fourteenth Amendment, the government’s justification for a gender classification “must be genuine, not hypothesized.”, 518 U.S. at 533, 116 S. Ct. at 2275. While a rational basis standard of review “permits a court to hypothesize interests that might support [governmental gender] distinctions, … heightened scrutiny limits the realm of justification to demonstrable reality.”, 533 U.S. 53, 77, 121 S. Ct. 2053, 2068 (2001) (O’Connor, J., dissenting).

We must examine the trial record to see whether the government showed a non-hypothesized justification for its gender classification. For instance, in, an employer claimed he fired a transgender woman because “other women might object to [her] restroom use.” 663 F.3d at 1321. But the record showed that the office building had “only single-occupancy restrooms,” and the employer testified he believed lawsuits over restroom use were “unlikely.” Because the record showed that concerns about restroom use were unfounded, our Court held there was not sufficient evidence that the employer “was actually motivated” by restroom-related concerns. As a result, the opinion said the employer’s defense was a “hypothetical justification” that was “wholly irrelevant to the heightened scrutiny analysis.”

Here, the School Board’s concerns about privacy in the boys’ bathrooms are as hypothetical as those raised in. After extensive evidence was presented at