USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 66 of 80
misunderstanding of the classification as based on transgender status gerrymandered its analysis to the second question.
In addition to misunderstanding the classification at issue, the now-vacated majority erroneously redefined the privacy interests at stake. Although the majority conceded that protecting bathroom privacy, in some abstract sense, is an important objective, it rejected both of the privacy interests that the school policy protects. For the first interest, the majority asserted that the Board incorrectly decided that its students had any privacy interest in using the bathroom away from “students who do not share the same birth sex.” Vacated Majority Op. at 21 (internal quotation marks omitted). And although the former majority opinion appeared to acknowledge that students have a privacy interest in not exposing their bodies, it did not accept that this interest can be sex-specific—that the interest is heightened when exposure is to the opposite sex. Instead, it asserted not only that Adams’s “anatomical differences” from boys are “irrelevant” to bathroom privacy, id. at 24, but also that thinking otherwise is an unconstitutional stereotype, id. at 25–28.
The new majority opinion repeats the second mistake. It devotes less than a page to the legitimacy of the government interests at stake. Majority Op. at 11–12. It acknowledges an abstract interest in “protecting the bodily privacy of young students,” and it “recognize[s]” that the government can permissibly protect privacy by “maintaining separate bathrooms for boys and girls, men and women.”
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