Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 42 of 70 PageID 10720
persuasive justification” for the School Board’s bathroom policy.[1] Virginia, 518 U.S. at 556. See also Grimm, 302 F. Supp. 3d at 751 (finding School Board’s privacy argument “[rang] hollow” and was based on conjecture given that the only complaints came from adults, not students (who had shared a restroom with the transgender student for weeks) and because a “‘transgender student’s presence in a restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex’”) (quoting Whitaker, 858 F.3d at 1052); Evancho, 237 F. Supp. 3d at 289–90 (acknowledging school’s obligation to protect student privacy but finding “facts on the ground” revealed school bathroom layout (composed of stalls with locking doors and partitioned urinals) did not pose any
- ↑ The School Board also relied on the privacy rights accorded under the Florida Constitution (Article I, Section 23), but did not explain how those rights would be infringed by the presence of a transgender student in a restroom conforming to his or her gender identity, nor why those rights should be given more weight than the Equal Protection rights at stake. Moreover, the School Board Attorney acknowledged that the Broward County School District (also in Florida) was not violating any Florida law by following its policy, which permits transgender students to use the restroom that accords with their gender identity. See Doc. 162 at Tr. 122–23. For the same reasons cited above, the privacy rights guaranteed under the Florida Constitution are not endangered when transgender students use multi-stall school restrooms that match their gender identity, particularly where all students have the option to avail themselves of the privacy afforded by the multi-stall and gender-neutral single-stall bathrooms. The persuasiveness of the cases relied on in the above analysis is not diminished merely because their states do not have a constitutional right of privacy similar to Florida’s. Nor is their analysis less persuasive because a state law may have prohibited discrimination on the basis of gender identity.
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