USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 39 of 80
WILLIAM PRYOR, Chief Judge, dissenting:
Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex. Although the Supreme Court recently considered the relationship between transgender status and sex in the context of claims of employment discrimination under Title VII, it declined to consider the permissibility of sex-separated bathrooms. See Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); see also id. at 1739 (assuming that “sex” refers “only to biological distinctions between male and female”). After all, context matters. As the late Justice Thurgood Marshall once put it, “A sign that says ‘men only’ looks very different on a bathroom door than a courthouse door.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 468–69 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part).
Against this backdrop, the St. Johns County School Board has long enforced a policy that separates the bathrooms in its elementary and secondary schools by sex. Last year, the majority issued an opinion ruling that this policy violated federal law regulating schools and was unconstitutional. As I pointed out then, its opinion distorted the policy, misunderstood the legal claims asserted, and rewrote
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