Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/58

 The majority’s misunderstanding of the classification at issue infects its constitutional inquiry. Intermediate scrutiny turns on the relationship between the classification at issue and the government’s objectives—that is, whether a sex-based classification is substantially related to the government’s objectives. See Nguyen, 533 U.S. at 60. So the relevant question is whether excluding students of one sex from the bathroom of the other sex substantially advances the schools’ privacy objectives. The question is not, as the majority frames it, whether excluding transgender students from the bathroom of their choice furthers important privacy objectives. The majority’s misunderstanding of the classification as based on transgender status gerrymanders its analysis to the second question.

Consider the majority’s assertion that the bathroom policy cannot satisfy intermediate scrutiny because it is arbitrary. See, e.g., Craig v. Boren, 429 U.S. 190, 201–04 (1976) (holding that a statute failed intermediate scrutiny when the relationship between the sex-based classification and government interest was “unduly tenuous”). The district court found that the school district determines each child’s sex by looking to the enrollment forms that the student provides when the student enrolls, which includes the student’s birth certificate. The majority explains that a transgender student who changed the sex on his birth certificate before enrolling could use the bathroom matching his gender identity and not his sex. See generally Fla. Admin. Code Ann. r. 64V-1.003(2)(c), (4)(b) (allowing amendments