USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 137 of 150
failed to meet its burden of proof, the bathroom policy fails heightened scrutiny.[1]
- iii. The Policy Is Administered Arbitrarily and Enforced Inconsistently.
Another telltale sign that the policy is untethered from any legitimate government interest is that it is administered arbitrarily. When a state actor does not take care to administer a policy containing a sex-based classification in a consistent or effective fashion, the state actor’s inconsistent administration and enforcement calls
- ↑ The majority opinion points to the following stipulation as evidence of safety and privacy concerns:
The parties stipulate that certain parents of students and students in the St. Johns County School District object to a policy or practice that would allow students to use a bathroom that matches their gender identity as opposed to their sex assigned at birth. These individuals believe that such a practice would violate the bodily privacy rights of students and raise privacy, safety and welfare concerns. Plaintiff submits this stipulation does not apply to himself or his parents.
Doc. 116 at 22 ¶ 3. The import of this stipulation is lost on me. What do the personal beliefs of “certain” individuals in the School District have to do with whether the policy actually furthers the asserted privacy and security interests or is instead founded on stereotypic biases and assumptions? Id. And even if the stipulation provided some support for the School District’s policy, how does it get the District close to the “exceedingly persuasive” fit it is required to establish? Nguyen, 533 U.S. at 70 (internal quotation marks omitted). It cannot and does not.
