USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 45 of 80
mind that the district court found that only 16 of the school district’s 40,000 students were transgender. Even if every single transgender student successfully enrolled as a member of the opposite sex, the school district would still be 99.96 percent accurate at identifying the sex of its students. This near-perfect result is certainly enough to satisfy intermediate scrutiny, even if the majority is correct that intermediate scrutiny applies. Intermediate scrutiny does not “require[] that the [policy] under consideration must be capable of achieving its ultimate objective in every instance.” Nguyen v. Immigr. & Naturalization Serv., 533 U.S. 53, 70 (2001); see also Michael M. v. Super. Ct. of Sonoma Cnty., 450 U.S. 464, 473 (1981) (plurality opinion) (“The relevant inquiry … is not whether the statute is drawn as precisely as it might have been … .”). Nor does it “require that [the policymaker] elect one particular mechanism” to accomplish its goals, “even if that mechanism arguably might be the most scientifically advanced method.” Nguyen, 533 U.S. at 63. This point also undermines the majority’s reliance on the decision of the Supreme Court in Craig v. Boren, 429 U.S. 190 (1976). See Majority Op. at 14–16. In that decision, the Supreme Court held that a correlation of two percent between maleness and drunk driving made Oklahoma’s higher drinking age for men “an unduly tenuous ‘fit’” with its goal of reducing drunk driving. Craig, 429 U.S. at 201–02. It takes no more explanation to see that Craig does not control here.
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