Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/51

 (2001); see also ''Michael M. v. Super. Ct. of Sonoma Cty.'', 450 U.S. 464, 473 (1981) (plurality opinion) (“The relevant inquiry … is not whether the statute is drawn as precisely as it might have been … .”).

Nor does it matter that Adams brings an as-applied challenge to the bathroom policy. “[C]lassifying a lawsuit as facial or as-applied … does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019). And, to reiterate, intermediate scrutiny does not “require[] that the [policy] under consideration must be capable of achieving its ultimate objective in every instance.” Nguyen, 533 U.S. at 70. Demanding that the policy satisfy its privacy interests as to each plaintiff who brings an as-applied challenge would disregard intermediate scrutiny by demanding a perfect fit between the sex-based classification and the government interest at issue.

The school policy also substantially advances its objective to protect children from exposing their unclothed bodies to the opposite sex. Courts have long understood that the “special sense of privacy” that individuals hold in avoiding bodily exposure is heightened “in the presence of people of the other sex.” Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (internal quotation marks omitted); accord, e.g., Cookish v. Powell, 945 F.2d 441, 446 (1st Cir. 1991); Harris v. Miller, 818 F.3d 49, 59 (2d Cir. 2016); Doe v. Luzerne Cty., 660 F.3d