Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/46

 WILLIAM PRYOR, Chief Judge, dissenting:

Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex. Although the Supreme Court recently considered the relationship between transgender status and sex in the context of claims of employment discrimination under Title VII, it declined to consider the permissibility of sex-separated bathrooms. See Bostock v. Clayton Cty., 140 S. Ct. 1731, 1753 (2020); see also id. at 1739 (assuming that “sex” refers “only to biological distinctions between male and female”). After all, context matters. As the late Justice Thurgood Marshall once put it, “A sign that says ‘men only’ looks very different on a bathroom door than a courthouse door.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 468–69 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part).

Against this backdrop, the St. John’sJohns [sic] County School Board has long enforced a policy that separates the bathrooms in its elementary and secondary schools by sex. And yet the majority rules this policy illegal—indeed unconstitutional—in an opinion that distorts the policy, misunderstands the legal claims asserted, and rewrites well-established precedent. By failing to address