Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022).pdf/129

 ::i.The School District Presented No Evidence that the Policy Substantially Furthers Its Interest in Protecting Student Privacy. The School District first asserts that the bathroom policy advances the important governmental interest of student “privacy.” The majority opinion defines the privacy interest this way: “The privacy interests hinge on using the bathroom away from the opposite sex and shielding one’s body from the opposite sex.” The Supreme Court has recognized a legitimate government interest in protecting the bodily privacy of students. Virginia, 518 U.S. at 550 n.19 (“Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements[.]”). I agree with the majority opinion that the first Hogan factor is satisfied—the School Board’s asserted interest of student “privacy” is a sufficiently important interest to pass heightened scrutiny.

It is on the second factor—whether the bathroom policy is “substantially related” to the asserted governmental interest—that I part ways with the majority opinion. I have four reasons.

First, the majority opinion ignores that the School District failed to introduce any nonspeculative evidence on this point. When it comes to defending a sex-based classification, we are in the business of relying on evidence, not speculation. Nguyen, 533 U.S. at 70; see ''Heller v. Doe ex rel. Doe'', 509 U.S. 312, 319 (1993) (observing that there is an “extensive evidentiary showing” required