USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 14 of 80
box checked as ‘M.’ The School District would accept that he is a boy for the purposes of restroom usage, is that right?” School District: “That’s correct.”). But a transgender student like Mr. Adams, who transitions after enrolling in the School District, is not allowed to use the boys’ bathroom. In this way, the bathroom policy does not apply to all transgender students equally.
This arbitrariness of the policy means it does not pass intermediate scrutiny. The Supreme Court struck down an arbitrary sex-based policy like this in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976). See id. at 204, 97 S. Ct. at 460. Craig addressed an Oklahoma statute that outlawed the sale of 3.2% beer to young men under the age of 21 and to young women under the age of 18, purportedly as a means to promote traffic safety. Id. at 191–92, 199, 97 S. Ct. at 454, 458. Considering the constitutionality of the statute, the Court first cast doubt on the strength of the statistical evidence that young men drink and drive more frequently than young women. See id. at 200–01, 97 S. Ct. at 458–59. The Court concluded that the statistical evidence did not demonstrate that gender was a “legitimate, accurate proxy for the regulation of drinking and driving.” Id. at 202, 204, 97 S. Ct. at 459–60. Then, even setting aside the problematic correlation of gender and drinking behavior, the Court observed that the statute as written did not even prevent young men from driving under the influence. This was because the law “prohibits only the selling of 3.2% beer to young males and not their drinking the
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