Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/61

 59; Luzerne Cty., 660 F.3d at 177; Overton Cty., 516 F.3d at 494; Canedy, 16 F.3d at 185.

Finally, the majority’s alternative contention that the privacy interests at issue are invalid because they rest on impermissible sex stereotypes is incorrect. According to the majority, the school policy “presumed every person deemed ‘male’ at birth would act and identify as a ‘boy’ and every person deemed ‘female’ would act and identify as a ‘girl.’” Majority Op. at. The majority also faults the policy for indulging in the purportedly unconstitutional stereotype that “one’s gender identity and expression should align with one’s birth sex.” Id. Neither of these arguments has merit.

The majority never explains how the school policy “presume[d] every person deemed ‘male’ at birth would act and identify as a ‘boy’ and every person deemed ‘female’ would act and identify as a ‘girl.’” Nor can it. The policy does not turn on how students “act and identify.” It assigns bathrooms by sex, which is not a stereotype. See Nguyen, 533 U.S. at 73 (“Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real.”); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (“Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.”).