Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/47

 head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms. I dissent.

Because the Equal Protection Clause “does not make sex a proscribed classification,” a policy that classifies on the basis of sex is constitutional if it survives the two requirements of intermediate scrutiny. United States v. Virginia, 518 U.S. 515, 533 (1996). The government first must prove that the “classification serves important governmental objectives.” Id. (internal quotation marks omitted). For an objective to be “important,” it cannot stem from “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Id. The objective must also be “genuine, not hypothesized or invented post hoc in response to litigation.” Id. In addition to proving that its policy serves important objectives, the government must prove that “the discriminatory means employed are substantially related to the achievement of those objectives.” Id. (internal quotation marks omitted).