USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 24 of 80
manufactures a problem where none exists.
Our ruling is a narrow one that addresses only whether Mr. Adams’s as-applied challenge to the School Board’s unwritten bathroom policy survives intermediate scrutiny. In arguing that this opinion reaches further than it actually does, the dissent relies on sheer conjecture and a rewriting of the record. But the Supreme Court has reiterated time and time again that a sex-based “classification must substantially serve an important governmental interest today,” not in some past or hypothetical world. Sessions v. Morales-Santana, 582 U.S. __, 137 S. Ct. 1678, 1690 (2017). In its attempts to meet this test, the dissent is forced to rewrite the facts, because the evidence actually before us shows that Mr. Adams had used the boys’ bathroom at Nease High School without any problems: student privacy, safety, or otherwise.
- 2. The Dissent Wrongly Claims the Challenged Policy “Does Not Exist” and Misconstrues the Parties’ Arguments
The dissent newly takes the position that a “policy does not exist” that defers to enrollment forms. Dissenting Op. at 48. The dissent’s rewriting of the policy at hand is inconsistent with both its prior position in this case and the record. The dissent previously recognized the factual basis describing how the policy works. See Previous Dissenting Op. at 58 (recounting without factual disagreement that “the school district determines each child’s sex by looking to the enrollment forms that the student provides when the student enrolls, which includes the student’s
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