Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/65

 But anyone can take advantage of the majority’s demolition of sex-specific bathroom privacy.

That the majority purports to invalidate the school policy only as it applies to Adams changes nothing. See Bucklew, 139 S. Ct. at 1127. The majority does not offer a meaningful way to distinguish this appeal from one that challenges sex-separated bathrooms and locker rooms. It only insists that the issue is not before it. But do not be fooled: future plaintiffs can still leverage the majority’s narrow view of privacy. Ultimately, if the privacy interest at stake is untethered from using the bathroom away from the opposite sex or from biological differences between the sexes, then no justification exists for separating bathrooms—or any related facility—by sex.

When shorn of the majority’s misunderstandings of the school policy and the legal standards that govern sex-based classifications, this appeal is straightforward. The school policy protects longstanding privacy interests inherent in using the bathroom, and it does so in an ancient and unremarkable way—by separating bathrooms on the basis of sex. That policy is not unconstitutional.

Title IX mandates that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20