USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 11 of 80
sufficiently important governmental interest.” Cleburne, 473 U.S. at 441, 105 S. Ct. at 3255. “Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.” Glenn v. Brumby, 663 F.3d 1312, 1319 (11th Cir. 2011). To pass muster under the Fourteenth Amendment, a governmental gender classification must “be reasonable, not arbitrary.” Reed v. Reed, 404 U.S. 71, 76, 92 S. Ct. 251, 254 (1971) (quotation marks omitted).
B.
The School Board says the government interest behind its bathroom policy is student privacy. Undoubtedly, protecting the bodily privacy of young students is an important government interest. See Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1052 (7th Cir. 2017) (holding a school district had “a legitimate interest in ensuring bathroom privacy rights are protected”), abrogated on other grounds as recognized by Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020); cf. New Jersey v. T.L.O., 469 U.S. 325, 338–39, 105 S. Ct. 733, 740–41 (1985) (observing, in the Fourth Amendment context, that a “search of a child’s person” at school “is undoubtedly a severe violation of subjective expectations of privacy”); Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (noting that “[s]tudents of course have a significant privacy interest in their unclothed bodies” against strip searches
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