USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 50 of 80
Only by framing the means of ascertaining students’ sex as being the goal of the schools’ separation of bathrooms does the majority turn the schools’ reliance on enrollment papers into a sex-based classification to which intermediate scrutiny could apply. Intermediate scrutiny applies only if the policy treats people differently on the basis of sex. United States v. Virginia, 518 U.S. 515, 533 (1996). Otherwise, rational-basis review would apply. Armour v. City of Indianapolis, 566 U.S. 673, 680–81 (2012). Separating bathrooms by sex treats people differently on the basis of sex: it instructs boys to use one set of facilities and girls to use another. By contrast, 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. To be clear, the distinction should make no difference here. The schools’ practice of relying on self-reported sex and supporting documentation survives either form of review. The distinction matters only for the majority’s decision to affirm the judgment of the district court by applying the wrong kind of constitutional scrutiny.
The majority’s theory not only misrepresents the record as it stands and applies the wrong form of scrutiny. It also was not litigated by the parties before the district court or before us. In this important case, involving some of the most pressing legal issues of the day, the majority eschews the briefs and strikes out on its own. But cf. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“In
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