USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 62 of 80
school policy, conflated sex-based classifications with transgender-based classifications, and contravened Supreme Court precedent. Compounding its errors, the majority then ignored fundamental understandings of why bathrooms are separated on the basis of sex by rejecting long-standing privacy rationales for sex-separated bathrooms. This conclusion led it to fault the objective underlying the school policy as both hypothetical and based on impermissible stereotypes. After misconstruing both the classification and the privacy interests at issue—the only two ingredients of intermediate scrutiny—the majority opinion then concluded that the schools’ classification does not substantially advance a valid objective. I take each of these errors in turn.
The majority’s now-vacated conclusion that the school policy classifies on the basis of sex because it “singles out transgender students” was both central to its analysis and wrong. Id. The previous majority opinion reached this incorrect conclusion by pointing to a provision of the school policy that does not have that effect. The former majority opinion said the school policy targets transgender students because of the following provision: “Transgender students will be given access to a gender-neutral restroom and will not be required to use the restroom corresponding to their biological sex.” Id. But this provision only offers the option of using gender-neutral bathrooms as an alternative to the bathroom that matches a child’s sex. It is an accommodation for transgender students, not a special burden.
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