USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 53 of 80
examination performed within one year before enrollment. See Fla. Stat. § 1003.22(1). The majority imagines assertions that I never made.
It is bad enough that the majority twists both the record and my dissent, but it compounds its errors by failing to consider the ramifications of its ruling. I warned in my previous dissent that the majority’s view would have consequences far beyond the confines of this appeal. The logic of its retracted opinion would invalidate all government policies that separate bathrooms—or locker rooms and showers, for that matter—by sex. To be sure, the majority “assume[d]” that the government can promote privacy interests by separating bathrooms by sex, and it insisted that the lawfulness of sex-separated locker rooms was not before it. Vacated Majority Op. at 8 n.3, 14. The majority offers similar cold comfort in its new opinion. But anyone can take advantage of the majority’s demolition of sex-specific bathroom privacy.
Moreover, the new majority opinion continues its earlier pretense of invalidating the policy it considers—then, the policy of separate bathrooms for the sexes; now, the schools’ method of determining students’ sex—only as it applies to Adams. Its earlier attempt at limiting itself to an as-applied challenge changed nothing. See Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019). The earlier majority opinion and the new one alike do not offer a meaningful way to distinguish this appeal from one that challenges sex-separated bathrooms and
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