Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/64

 address that concern. Further, under intermediate scrutiny, an invidious stereotype about members of a suspect class cannot justify a discriminatory policy “even when some statistical support can be conjured up for the generalization.” ''J.E.B. v. Ala. ex rel. T.B.'', 511 U.S. 127, 139 n.11 (1994). So evidence that children of a particular sex—or transgender students under the majority’s perspective—are likely to “harass or peep at” members of the opposite sex could not justify sex-separated bathrooms.

Only after it replaces both of the inquiries relevant to intermediate scrutiny—the “discriminatory means employed” by the policy and the privacy interests at issue, Virginia, 518 U.S. at 533 (internal quotation marks omitted)—does the majority conclude that the school policy does not substantially advance its objective to protect privacy. The end result is an opinion on sex discrimination that looks nothing like an intermediate-scrutiny inquiry into whether a sex-based classification satisfies the Equal Protection Clause.

The majority’s redefinition of intermediate scrutiny will have consequences far beyond the confines of this appeal. The logic of its opinion would invalidate all government policies that separate bathrooms—or locker rooms and showers, for that matter—by sex. To be sure, the majority “assume[s]” that the government can promote privacy interests by separating bathrooms by sex, and it insists that the lawfulness of sex-separated locker rooms is not before it. Majority Op. at,.