USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 14 of 150
must be capable of achieving its ultimate objective in every instance.”); see also Eng’g Contractors Ass’n of S. Fla. Inc. v. Metro Dade County, 122 F.3d 895, 929 (11th Cir. 1997) (“[U]nder intermediate scrutiny, a gender-conscious program need not closely tie its numerical goals to the proportion of qualified women in the market.”).
In the instant appeal, Adams argues that the bathroom policy unlawfully discriminates on both the basis of sex and transgender status. We address both of Adams’s arguments in turn and hold that there has been no unlawful discrimination.
1. The Bathroom Policy Does Not Unlawfully Discriminate on the Basis of Sex
The School Board’s bathroom policy requires “biological boys” and “biological girls”—in reference to their sex determined at birth—to use either bathrooms that correspond to their biological sex or sex-neutral bathrooms. This is a sex-based classification. Adams challenges the policy’s requirement that Adams must either use the female bathrooms—which correspond with Adams’s biological sex—or the sex-neutral bathrooms. Simply put, Adams seeks access to the male bathrooms, which correspond with the gender Adams identifies with.
Before reaching the merits of Adams’s argument and the constitutional question presented in this case, we begin with one prefatory note: the role that schools have in setting policies for students. As the Supreme Court has recognized, constitutional rights, including “Fourteenth Amendment rights, are different in public
