USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 131 of 150
burden, standing alone, is reason enough to affirm the district court’s judgment on Adams’s equal protection claim.
Second, the majority opinion fails to contend with the evidence regarding how transgender students typically use the restroom. The majority opinion asserts that the privacy interest at issue involves “shielding one’s body from the opposite sex.” Majority Op. at 24. The record reflects, however, that transgender individuals are discrete in using the restroom aligning with their gender identity. As a general matter, transgender students wish to shield parts of their anatomy that would identify them as belonging to their birth-assigned sex. And with respect to Adams specifically, the district court found that he always uses a stall, locks the door to the stall, uses the restroom, leaves the stall, washes his hands, and exits the restroom. In response to this evidence, the majority opinion deflects, saying that the privacy right at issue here is different from “using the bathroom in priva[te].” Id. Rather, the majority opinion says, there is some abstract student privacy interest that requires students to use restrooms according to birth-assigned sex.
Herein lies the third problem for the majority opinion—Adams’s evidence that the bathroom policy’s assignment of Adams to the girls’ restrooms would actually undermine the abstract privacy interest the School District wished to promote. While he attended Nease and was excluded from the boys’ bathrooms, Adams had “facial hair,” “typical male muscle development,” a deep voice, and a short haircut. Doc. 192 at 66. He had no visible breast tissue; his chest appeared flat. He wore masculine clothing. Any occupant of
