USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 20 of 80
opinion rules on the constitutionality of sex-segregated bathrooms and will have far-reaching consequences. Id. at 39–41, 53–54. Second, the dissent says the challenged policy “does not exist” and that we misconstrue the parties’ arguments. Id. at 48–53. Third, the dissent says the challenged policy is not arbitrary because it is largely “accurate.” Id. at 42–48. None of these arguments is availing. We address each in turn.
- 1. The Dissent Is Wrong to Say This Ruling Addresses the Constitutionality of Sex-Segregated Bathrooms or Any Other Issue Involving Student Privacy
Contrary to the dissent’s assertion, this case is not about challenging sex-segregated bathrooms. Mr. Adams does not challenge or even question the ubiquitous societal practice of separate bathrooms for men and women. See Appellee’s Br. at 41. Everyone in this case, including Mr. Adams, “agrees that boys should use the boys’ restroom at Nease and that girls should use the girls’ restroom.” The School Board itself stated this point in its brief before us: “Indeed, Adams did not challenge the School Board’s ability to separate boys and girls into different bathrooms on the basis of sex, and the District Court did not hold that such separation was impermissible.” Appellant’s Br. at 15. The District Court emphasized—and we do as well—that the ruling in Mr. Adams’s case “will not integrate the restrooms between the sexes,” because there is “no evidence to suggest that [Adams’s] identity as a boy is any less consistent, persistent and
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