Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/50

 constitutional.”). This privacy interest has long been “appropriately harmonized” with the principle of equality. Ginsburg, Equal Rights Amendment, supra.

The schools’ policy is also “substantially related to the achievement” of its objective to protect this privacy interest. Virginia, 518 U.S. at 533 (internal quotation marks omitted). Indeed, the policy is a mirror image of its objective—it protects students from using the bathroom with the opposite sex by separating bathrooms on the basis of sex. The policy “is not a means to some greater end, but an end in itself.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572 (1991) (plurality opinion). Intermediate scrutiny is satisfied when a policy directly achieves the objective itself. See id.

This conclusion does not turn on Adams’s sex. The district court found that the St. John’sJohns [sic] County School District educates about 40,000 children, and of all those students, the Board is aware of only 16 transgender students. Even if the district court were correct that gender identity, not biology, determines a person’s sex—that is, the school policy should have assigned these 16 students to the bathroom that aligned with their gender identity—the policy would still be 99.96 percent accurate in separating bathrooms by sex. This near-perfect result is certainly enough to satisfy intermediate scrutiny, which does not “require[] that the [policy] under consideration must be capable of achieving its ultimate objective in every instance.” Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53, 70