USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 31 of 80
(“Let’s suppose there was a transgender boy … who transfers into the school district, moves from another state, in ninth grade, with the 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.”). It is not right for the dissent to now make arguments the School Board never made for itself by claiming the issues being decided today were not properly teed up. They were. They were addressed in this litigation repeatedly through the standard course of record development, briefing, and oral argument. Today’s ruling falls squarely within the ordinary course of appellate review, and we may undoubtedly affirm the District Court’s ruling based on the Equal Protection Clause after our independent review of the law. See Tartell, 790 F.3d at 1257.
- 3. The Dissenting Opinion Wrongly Relies on Statistics for Its Equal Protection Analysis
The dissent’s insistence that the policy passes heightened review because it is “accurate,” Dissenting Op. at 45, misapprehends intermediate scrutiny.[1] The
- ↑ The dissent agrees that intermediate scrutiny applies if a policy treats people differently on the basis of sex. Dissenting Op. at 50. To the extent the dissent now claims that rational basis review applies because “the mere act of determining an individual’s sex, using the same rubric for both sexes, does not treat anyone differently on the basis of sex,” id., the dissent misunderstands the policy, which does more than “determine” an individual’s sex. It assigns students to bathrooms on the basis of sex using the information provided at the time of enrollment. Intermediate scrutiny undoubtedly applies in this case. Neither party has said otherwise. As the School Board said, “Here, intermediate scrutiny applies.” Appellant’s Brief at 21; see also Oral Arg. Recording at 3:25–3:56 (Dec. 5, 2019) (Chief Judge Pryor: “Segregating the bathrooms on the basis of sex is a sex-based classification, right?” School District: “Sure. Sure, it is.” Chief Judge Pryor: “So the question is, … can that classification survive, for the constitutional claim, can it survive intermediate scrutiny, right?” School District: “Correct, Your
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