Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/21

 the sum of these facts, we cannot say the School Board has met its burden to show a genuine, non-hypothetical privacy justification for excluding Mr. Adams from the boys’ bathroom. , 858 F.3d at 1052–53.

Accepting, as it must, the District Court’s finding that Mr. Adams has not harassed or peeped at other boys while using the boys’ restroom, the School Board argues Mr. Adams’s mere presence in the boys’ room constitutes a privacy violation. It asserts that “when Adams enters a boys’ bathroom and there is a biological boy using the urinal, that biological boy’s privacy rights have been violated.” Again, this record simply does not support this assertion. Absent such evidence, we “decline to recognize such an expansive [formulation of] privacy … that would be violated by the presence of students who do not share the same birth sex.”, 897 F.3d 518, 531 (3d Cir. 2018) (holding that transgender students’ access to bathrooms matching gender identity did not violate non-transgender students’ constitutional privacy rights), , 139 S. Ct. 2636 (2019);  , 949 F.3d 1210, 1222 (9th Cir. 2020) (holding that there is no Fourteenth Amendment privacy right not to share school restrooms with transgender students who were assigned a different sex at birth); , 858 F.3d at 1052 (holding a school could not show the “mere presence of a transgender student in the bathroom” infringed on other students’ privacy rights, without facts supporting