USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 12 of 80
at school). Furthermore, we recognize that the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls, men and women.
C.
Having set out the level of scrutiny we must apply, as well as the government interest at issue, we turn to evaluate whether the policy satisfies intermediate scrutiny. To be clear, Mr. Adams does not challenge the existence of sex-segregated bathrooms and does not question the ubiquitous societal practice of separate bathrooms for men and women. See also infra at 20, 22–24. Thus, this opinion needs not and does not address the larger concept of sex-segregated bathrooms. Rather, the issue before us is whether the challenged policy passes intermediate scrutiny in assigning students to bathrooms based solely on the documents the School District receives at the time of enrollment.
We see at least two ways in which the policy fails heightened review. First, the policy relies on information provided in a student’s enrollment documents to direct the student to use the boys’ or girls’ bathroom. This targets some transgender students for bathroom restrictions but not others. Second, the policy necessarily rejects current government documents in favor of outdated documents in assigning students to bathrooms. We address each problem in turn.
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