USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 32 of 80
dissent suggests the constitutionality of a policy turns on the soundness of the statistical correlation supporting it, when the Supreme Court in Craig, following a long line of precedent, rejected that precise premise.
In Craig, the Supreme Court invalidated a sex-based regulation despite the fact that men in the relevant age group were over 11 times more likely than women of the same age group to be arrested for driving under the influence of alcohol. 429 U.S. at 201, 97 S. Ct. at 459. Other statistics recounted in Craig showed that 78% of drivers in a relevant geographic area who were under the age of 20 were male, and 84% of men expressed a preference for beer. Id. at 203 n.16, 97 S. Ct. at 460 n.16. This too was not enough to save the challenged regulation. The Court warned of the regulations that would be blessed “if statistics were to govern the permissibility of state [action] without regard to the Equal [P]rotection Clause as a limiting principle.” Id. at 208 n.22, 97 S. Ct. at 463 n.22. “Indeed,” the Court wrote, “prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than” the one in Craig. Id. at 202, 97 S. Ct. at 459
Honor.”). Nor did the previous dissenting opinion ever raise the possibility of applying rational basis review, even though our previous majority opinion stated exactly the same rationale in determining the bathroom policy arbitrary. Compare Previous Majority Op. at 15–18, {[u|with}} Previous Dissenting Op. at 47 (applying intermediate scrutiny).
In any event, the dissent cannot now claim on the one hand that the majority’s holding on the School Board’s policy somehow decides the constitutionality of sex-segregated bathrooms (which this appeal does not), while also asserting that we should be applying rational basis review. The dissent cannot have it both ways. See Dissenting Op. at 50.
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