USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 55 of 80
1. The Bathroom Policy Does Not Violate the Equal Protection Clause.
Because the Equal Protection Clause “does not make sex a proscribed classification,” a policy that classifies on the basis of sex is constitutional if it survives the two requirements of intermediate scrutiny. Virginia, 518 U.S. at 533. The government first must prove that the “classification serves important governmental objectives.” Id. (internal quotation marks omitted). For an objective to be “important,” it cannot stem from “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Id. The objective must also be “genuine, not hypothesized or invented post hoc in response to litigation.” Id. In addition to proving that its policy serves important objectives, the government must prove that “the discriminatory means employed are substantially related to the achievement of those objectives.” Id. (internal quotation marks omitted).
Under this well-established standard, this appeal is not complicated. Although the schools’ sex-separated bathrooms policy classifies on the basis of sex, it serves the important objectives of protecting the interests of children in using the bathroom away from the opposite sex and in shielding their bodies from exposure to the opposite sex. The policy also fits tightly with both interests in privacy. By requiring students to use the bathroom away from the opposite sex, the policy directly protects the first interest and eliminates one of the most likely
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