USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 58 of 80
bathrooms on the basis of sex. The policy “is not a means to some greater end, but an end in itself.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572 (1991) (plurality opinion). Intermediate scrutiny is satisfied when a policy directly achieves the objective itself. See id.
This conclusion would stand even if the district court were correct that gender identity, not biology, determines a person’s sex—that is, if the school policy should have assigned the school district’s 16 transgender students to the bathroom that aligned with their gender identity. The policy would still assign the rest of the district’s 40,000 students to the right bathrooms, so it would still be 99.96 percent accurate in separating bathrooms by sex. As discussed already, this near-perfect result is certainly enough to satisfy intermediate scrutiny. Nguyen, 533 U.S. at 70; see also Michael M., 450 U.S. at 473 (plurality opinion).
Nor does it matter that Adams brings an as-applied challenge to the bathroom policy. “[C]lassifying a lawsuit as facial or as-applied … does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Bucklew, 139 S. Ct.at 1127. And, to reiterate, intermediate scrutiny does not “require[] that the [policy] under consideration must be capable of achieving its ultimate objective in every instance.” Nguyen, 533 U.S. at 70. Demanding that the policy satisfy its privacy interests as to each plaintiff who brings an as-applied challenge would disregard intermediate scrutiny by
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