USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 132 of 150
the girls’ restroom would have seen a boy entering the restroom when Adams walked in. Thus, the district court found, “permitting him to use the girls’ restroom would be unsettling for all the same reasons the School District does not want any other boy in the girls’ restroom.” Id. at 28 n.30. In other words, the evidence showed that a transgender boy walking into the girls’ restroom would undermine the sense of privacy for all involved.[1] The policy therefore lacks “fit” with the asserted privacy interest because by assigning students who identify as and appear to be male to the girls’ restroom and students who identify as and appear to be female to the boys’ bathroom, the policy is drastically underinclusive with respect to its stated purpose. See Friedman v. Harold, 638 F.2d 262, 269 (1st Cir. 1981) (observing in dicta that a state law prohibiting creditors of a wife from attaching her interest in a tenancy by the entirety but permitting creditors of a husband to attach his interest would not survive intermediate scrutiny because the law’s “limitation to only one half of the relevant situations [wives but not husbands] renders it dramatically underinclusive as a means of attaining [the] end” of protecting the interests of innocent non-debtor spouses in property held by the entirety, and thus “presents such a
- ↑ I do not buy the majority opinion’s characterization of the School District’s bathroom policy as it applies to transgender students “an accommodation” under which they could use either of two restroom options. Maj. Op. at 34. In practice, the policy forced transgender students like Adams to use only the gender-neutral bathrooms.
