USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 65 of 80
based on homosexuality or transgender status necessarily entails discrimination based on sex” in the context of employment discrimination under Title VII. Id. at 1747; see also Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that discrimination based on gender nonconformity constitutes sex discrimination regardless of whether the victim is transgender or not). But this appeal concerns the converse question: whether discrimination on the basis of sex necessarily entails discrimination based on transgender status. Of course, a policy can classify on the basis of sex without also classifying on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, Bostock expressly disclaimed reaching any conclusion on the permissibility of sex-separated bathrooms and locker rooms. See 140 S. Ct. at 1753.
The now-withdrawn majority opinion’s misunderstanding of the classification at issue infected its constitutional inquiry. Intermediate scrutiny turns on the relationship between the classification at issue and the government’s objectives—that is, whether a sex-based classification is substantially related to the government’s objectives. See Nguyen, 533 U.S. at 60. So the relevant question is whether excluding students of one sex from the bathroom of the other sex substantially advances the schools’ privacy objectives. The question is not, as the majority framed it, whether excluding transgender students from the bathroom of their choice furthers important privacy objectives. The majority’s
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