USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 76 of 150
means by which the School Board is attempting to enforce its interests in the safety and privacy of students ultimately undermines the bathroom policy, I struggle to see how the policy passes constitutional muster under intermediate scrutiny. Unfortunately, the majority is once again relegating a district court’s findings of fact to the dustbin. See Schultz v. Alabama, 42 F. 4th 1298, 1336-42 (11th Cir. 2022) (Rosenbaum, J., dissenting in part); Otto v. City of Boca Raton, 41 F.4th 1271, 1285 (11th Cir. 2022) (Jordan, J., dissenting from the denial of rehearing en banc); United States v. Brown, 996 F.3d 1171, 1196–99, 1202–05 (11th Cir. 2021) (en banc) (Wilson, J., dissenting); Jones v. Governor of Fla., 975 F.3d 1016, 1066 (11th Cir. 2020) (en banc) (Jordan, J., dissenting); Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1279 (11th Cir. 2020) (Wilson, J., dissenting). That this keeps happening, in cases arising in every conceivable procedural posture—preliminary injunction, evidentiary hearing, trial—does not make it right.
Even if the district court had not made findings of fact on how the bathroom policy applies to transgender students just like Drew who enroll after transition, affirmance would still be in order. First, as we have held sitting en banc, we review the judgment on appeal and not the district court’s rationale. See, e.g., United States v. $242,484.00, 389 F.3d 1149, 1153 (11th Cir. 2004) (en banc) (“A bedrock principle upon which our appellate review has relied is that the appeal is not from the opinion of the district court but from its judgment.”) (internal quotation marks and citation omitted). Second, we can “affirm the … judgment on any ground that appears
