USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 61 of 80
maintaining discipline, health, and safety.” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830 (2002); see also Fla. Stat. § 1001.42(8)(a) (making school boards responsible for the “control of students at school, and for proper attention to health, safety, and other matters relating to the welfare of students”). This responsibility is so weighty that school districts can be liable for sexual assault and harassment between students. See Miami-Dade Cnty. Sch. Bd. v. A.N., 905 So. 2d 203, 203–04, 206 (Fla. Dist. Ct. App. 2005) (upholding a jury verdict against a school for failing to protect a student who was sexually assaulted in a bathroom by another student); see also Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007). And bathrooms, one of the few areas in a school that are unsupervised, plainly pose risks to student “discipline, health, and safety.” Earls, 536 U.S. at 830; see also A.N., 905 So. 2d at 203–04, 206. The Board’s assessment of the privacy risks its students face and the effectiveness of its policy in mitigating those risks deserves deference.
The since-withdrawn majority opinion elided this entire analysis by misunderstanding both the classification and privacy interests at issue. It contended that the policy triggers heightened scrutiny not because it separates bathrooms by sex but because it purportedly imposes “differential treatment” on transgender students. Vacated Majority Op. at 12. In doing so, the majority misstated the
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