Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/59

 to birth certificates with medical documentation). According to the majority, this process for determining sex fails to achieve the “stated goal of restricting transgender students to the restroom of their assigned sex at birth” because the enrollment documents are not “legitimate, accurate prox[ies]” for determining a transgender student’s “sex assigned at birth.” Majority Op. at (quoting Craig, 429 U.S. at 204).

This argument fails when we remember that the goal of the policy is to restrict all students, not only transgender students, from the bathroom of the opposite sex. Birth certificates are an almost perfect proxy for determining a student’s sex. Even if all transgender students in the school district used bathrooms that did not align with their sex, the policy would still be 99.96 percent accurate in separating bathrooms by sex, which satisfies intermediate scrutiny. See Nguyen, 533 U.S. at 70. To close the supposed loophole that the majority identifies, schools in the district would need to target transgender students. Of course, intermediate scrutiny does not require that approach. See id. at 63 (“The Constitution … does not require that Congress elect one particular mechanism … even if that mechanism arguably might be the most scientifically advanced method.”).

In addition to misunderstanding the classification at issue, the majority erroneously redefines the privacy interests at stake. Although the majority concedes that protecting bathroom privacy, in some abstract sense, is an important