USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 54 of 80
locker rooms. That high school teenagers are not required to shower after physical education classes is not an adequate response to concerns about student privacy. Majority Op. at 23.
The majority insists that these other issues are not before it. “Do not believe it.” Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting). Future plaintiffs can still leverage the majority’s narrow view of privacy. Ultimately, if the privacy interest at stake is untethered from using the bathroom away from the opposite sex or from biological differences between the sexes, then no justification exists for separating bathrooms—or any related facility—by sex.
B. The Statutory and Constitutional Challenges Raised by Adams Fail.
The majority has now retreated from its agreement with the statutory and constitutional challenges Adams presented. Indeed, the majority now puzzlingly asserts that its previous opinion “no longer … exist[s],” Majority Op. at 19, even though that opinion—though vacated—can still be found in the Federal Reporter, see Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286 (11th Cir. 2020). Regardless, I address the statutory and constitutional challenges Adams presented because, unlike the majority’s newly invented theory of the case, those issues were actually decided by the district court. I begin with the equal-protection arguments challenging the schools’ policy of separating bathrooms on the basis of sex. Then I turn to Adams’s Title IX challenge.
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