Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/52

 169, 177 (3d Cir. 2011); Strickler v. Waters, 641 F.2d 1375, 1387 (4th Cir. 1993); Moore v. Carwell, 168 F.3d 234, 236–37 (5th Cir. 1999); ''Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008); Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994); Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc); Hayes v. Marriott'', 70 F.3d 1144, 1146 (10th Cir. 1995). And separating bathrooms by sex eliminates one of the most common opportunities for exposure to the opposite sex. The district court acknowledged the undisputed testimony that students at Adams’s school change clothing outside bathroom stalls and that bathrooms are ordinarily unsupervised. By separating bathrooms by sex, the policy eliminates the risk of bodily exposure where it is most likely to occur, which satisfies intermediate scrutiny. See Nguyen, 533 U.S. at 70 (holding that a policy that “seeks to foster the opportunity” for a government objective “has a close and substantial bearing on” that objective).

Even if any doubt remained about whether the bathroom policy survives scrutiny, we must resolve that doubt in favor of the Board because the policy governs student conduct in public schools. The Supreme Court has long held that the constitutional rights of students, including “Fourteenth Amendment rights, are different in public schools than elsewhere.” ''Vernonia Sch. Dist. 47J v. Acton'', 515 U.S. 646, 656 (1995). Schools have a “custodial and tutelary” power over minor students, “permitting a degree of supervision and control that could not be