Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/63

 relative capabilities of men and women.” Cleburne, 473 U.S. at 441. To say that it is an unconstitutional stereotype to believe that “one’s gender identity and expression should align with one’s birth sex,” the majority must not only rewrite the Supreme Court’s physiological rationale for heightened scrutiny of sex-based classifications, but also hold that many of the Court’s sex-discrimination decisions turned on an impermissible stereotype. See Nguyen, 533 U.S. at 73; Virginia, 518 U.S. at 533; Geduldig, 417 U.S. at 496 n.20; Frontiero, 411 U.S. at 686. We, of course, cannot take either of those actions.

The majority’s narrow construction of bathroom privacy skews the intermediate-scrutiny analysis in favor of Adams. Policies that separate bathrooms on the basis of sex arise from the understanding that privacy interests are sometimes sex specific. By failing to acknowledge any sex-specific privacy interest, the majority demands the impossible: a justification for sex-separated bathrooms that does not involve sex. To be sure, the majority suggests that a different trial record—one that contained evidence that Adams or other transgender students “harass[ed] or peep[ed] at” other students in the bathroom—might support the bathroom policy. Majority Op. at. But that evidence would not justify a sex-based classification. If voyeurism is equally problematic whether it occurs between children of the same or opposite sex, then separating bathrooms by sex would not advance any interest in combatting voyeurism. Only single-stall bathrooms could