USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 23 of 150
458 U.S. at 724. Intermediate scrutiny is satisfied when a policy “has a close and substantial bearing on” the governmental objective in question. Nguyen, 533 U.S. at 70. The School Board’s bathroom policy is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur. Therefore, the School Board’s bathroom policy satisfies intermediate scrutiny.
The district court avoided this conclusion only by misconstruing the privacy interests at issue and the bathroom policy employed. The district court found that “allowing transgender students to use the restrooms that match their gender identity does not affect the privacy protections already in place.” In the district court’s eyes, this was because “Adams enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves” the male bathroom. The district court discounted the privacy interests at play by claiming that “Adams has encountered no problems using men’s restrooms in public places, and there were no reports of problems from any boys or boys’ parents during the six weeks … when Adams used the boys’ restrooms.” Thus, the district court found “the School Board’s concerns about privacy” to be “only conjectural.”
But the district court’s contentions, which the dissent, Adams, and many amici echo, minimize the undisputed fact that, at
