USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 46 of 80
The majority fails to understand this analysis or to appreciate the privacy interests at stake. As the majority notes, the Supreme Court has cautioned that it is “unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique.” Id. at 204. The majority contends that “rel[ying] on a figure of 99.96 percent [is] a prime example of the folly of relying on statistics in equal protection analysis.” Majority Op. at 34. To be clear, the figure of 99.96 percent comes from subtracting the number of transgender students in the district (16) from the total number of students (40,000) and then dividing that number by the total number of students (40,000). Respectfully, basic subtraction and division are not “rigor[ous] … experimental or statistical technique[s]” beyond the capabilities of federal judges. Craig, 429 U.S. at 204; see, e.g., Birchfield v. North Dakota, 136 S. Ct. 2160, 2193 n.10 (2016) (Sotomayor, J., concurring in part and dissenting in part) (“Seven thousand annual arrests divided by 82 judges and magistrate judges is 85.4 extra warrants per judge and magistrate judge per year. And 85.4 divided by 52 weeks is 1.64 extra warrants per judge and magistrate judge per week.”); Cent. R.R. Co. of Pa. v. Pennsylvania, 370 U.S. 607, 610 n.2 (1962) (“If [605,678 car days are] divided by 365, the quotient (1,659) represents the average number of cars located on [out-of-state] railroads on any one day during [that year].”). And contrary to what the majority asserts, the Supreme Court has never said that simple arithmetic cannot be used to
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