USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 71 of 80
Only after it replaced both of the inquiries relevant to intermediate scrutiny—the “discriminatory means employed” by the policy and the privacy interests at issue, Virginia, 518 U.S. at 533 (internal quotation marks omitted)—did the defunct majority opinion conclude that the school policy does not substantially advance its objective to protect privacy. The end result was an opinion on sex discrimination that looked nothing like an intermediate-scrutiny inquiry into whether a sex-based classification satisfies the Equal Protection Clause. The majority’s impulse to try again is understandable.
When shorn of misunderstandings of the school policy and the legal standards that govern sex-based classifications, this appeal is straightforward. The school policy protects longstanding privacy interests inherent in using the bathroom, and it does so in an ancient and unremarkable way—by separating bathrooms on the basis of sex. That policy is not unconstitutional.
2. The Bathroom Policy Does Not Violate Title IX.
The majority no longer addresses Adams’s statutory challenge to the schools’ policy, but I explain why the policy is permissible. Title IX mandates that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). But an important qualification tempers this mandate: “nothing contained herein shall be
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