USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 70 of 80
The majority’s narrow construction of bathroom privacy skewed the intermediate-scrutiny analysis in favor of Adams. Policies that separate bathrooms on the basis of sex arise from the understanding that privacy interests are sometimes sex specific. By failing to acknowledge any sex-specific privacy interest, the majority demands the impossible: a justification for sex-separated bathrooms that does not involve sex. To be sure, the since-withdrawn majority suggested that a different trial record—one that contained evidence that Adams or other transgender students “harass[ed] or peep[ed] at” other students in the bathroom—might support the bathroom policy. Vacated Majority Op. at 21. But that evidence would not justify a sex-based classification. If voyeurism is equally problematic whether it occurs between children of the same or opposite sex, then separating bathrooms by sex would not advance any interest in combatting voyeurism. Only single-stall bathrooms could address that concern. Further, under intermediate scrutiny, an invidious stereotype about members of a suspect class cannot justify a discriminatory policy “even when some statistical support can be conjured up for the generalization.” J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 139 n.11 (1994). So evidence that children of a particular sex—or transgender students under the majority’s perspective—are likely to “harass or peep at” members of the opposite sex could not justify sex-separated bathrooms.
70
