USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 83 of 150
The Majority Opinion incorrectly suggests that if we affirm the district court here on its equal-protection analysis, required transgender students’ use of locker rooms and other changing facilities of the gender with which they identify will inevitably follow.[1] Because it may be possible that the suggestion that our decision here would dictate the outcome of all cases involving sex-separated facilities might cloud some readers’ vision as to what the law requires in Adams’s case, I think it’s important to let the sunlight in and show why that’s not accurate.
Namely, the heightened-scrutiny test that governs our analysis is an extremely fact-bound test.
First, it requires the government to identify the important interest or interests that its policy serves. See Nguyen v. INS, 533 U.S. 53, 60–61 (2001) (citation omitted). Here, the School Board identified privacy and safety. But in another case involving another policy or another type of policy, the governmental entity might invoke other important interests. And it might choose not to rely on privacy or safety. Put simply, any opinion we write today cannot limit a future governmental entity’s ability to identify more or different important interests than did the School Board here.
Second, heightened scrutiny requires the governmental entity to provide evidence that its challenged policy “serve[s]
- ↑ Of course, even if this were correct—and it’s not, as I explain above—it would not be an acceptable reason to avoid doing what the Equal Protection Clause requires.
