Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/54

 ''Regents of Univ. Sys. of Ga.'', 477 F.3d 1282, 1299 (11th Cir. 2007). And bathrooms, one of the few areas in a school that are unsupervised, plainly pose risks to student “discipline, health, and safety.” Earls, 536 U.S. at 830; see also A.N., 905 So. 2d at 203–04, 206. The Board’s assessment of the privacy risks its students face and the effectiveness of its policy in mitigating those risks deserves deference.

The majority opinion elides this entire analysis by misunderstanding both the classification and privacy interests at issue. It contends that the policy triggers heightened scrutiny not because it separates bathrooms by sex but because it purportedly imposes “differential treatment” on transgender students. Majority Op. at. In doing so, the majority misstates the school policy, conflates sex-based classifications with transgender-based classifications, and contravenes Supreme Court precedent. Compounding its errors, the majority then ignores fundamental understandings of why bathrooms are separated on the basis of sex by rejecting long-standing privacy rationales for sex-separated bathrooms. This conclusion leads it to fault the objective underlying the school policy as both hypothetical and based on impermissible stereotypes. After misconstruing both the classification and the privacy interests at issue—the only two ingredients of intermediate scrutiny—the majority opinion then concludes that the schools’ classification does not substantially advance a valid objective. I take each of these errors in turn.