USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 20 of 150
The protection of students’ privacy interests in using the bathroom away from the opposite sex and in shielding their bodies from the opposite sex is obviously an important governmental objective. Indeed, the district court “agree[d] that the School Board has a legitimate interest in protecting student privacy, which extends to bathrooms.” Understanding why is not difficult—school-age children “are still developing, both emotionally and physically.” See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 636 (4th Cir. 2020) (Niemeyer, J., dissenting) (“[A]ll individuals possess a privacy interest when using restrooms or other spaces in which they remove clothes and engage in personal hygiene, and this privacy interest is heightened when persons of the opposite sex are
reliance on physiological and biological differences between men and women in its sex-discrimination decisions, which therefore raises serious questions about Adams’s similarly situated status for purposes of the bathroom policy under review. Such an assertion also is undercut by the dissent’s refusal to engage the issue of gender fluidity—i.e., the practice, which the dissent acknowledges, in which some individuals claim to change gender identities associated with the male and female sexes and thereby treat sex as a mutable characteristic. Jill Pryor Dis. Op. at 63 (“This case has no bearing on the question how to assign gender fluid individuals to sex-separated bathrooms.”). But see Frontiero, 411 U.S. at 686 (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”). Such an assertion is further undercut by the dissent’s attempt to categorize transgender persons as members of a quasi-suspect class, which necessarily entails treating transgender persons as distinct from the sexes with which they identify. Jill Pryor Dis. Op. at 40-41. Nevertheless, as the opinion concludes, the bathroom policy passes constitutional muster regardless of whether Adams is similarly situated to biological boys for purposes of the bathroom policy because the policy’s sex-based classification satisfies intermediate scrutiny.
