Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022).pdf/67

, Circuit Judge, joined by and , Circuit Judges, Dissenting:

Two legal propositions in this case are undisputed. The first is that the School Board’s unwritten bathroom policy regulates on the basis of gender. The second is that the policy, as a gender-based regulation, must satisfy intermediate scrutiny. Given these two propositions, the evidentiary record, and the district court’s factual findings, the School Board cannot justify its bathroom policy under the Equal Protection Clause of the Fourteenth Amendment. See Adams by and through Kasper v. Sch. Bd. of St. Johns Cnty., 318 F. Supp. 3d 1293, 1311–1320 (M.D. Fla. 2018); Adams by and through Kasper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1297–99 (11th Cir. 2020); Adams v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1308–11 (11th Cir. 2021).

The School Board did not allow Drew Adams, a transgender student, to use the boys’ bathroom. As explained below, however, the School Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with documents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience. And when intermediate scrutiny applies,