USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 22 of 150
undisputed approval of separate public rest rooms for men and women based on privacy concerns. The need for privacy justifies separation and the differences between the genders demand a facility for each gender that is different.”); see also Grimm, 972 F.3d at 634 (Niemeyer, J., dissenting) (“In light of the privacy interests that arise from the physical differences between the sexes, it has been commonplace and universally accepted—across societies and throughout history—to separate on the basis of sex those public restrooms, locker rooms, and shower facilities that are designed to be used by multiple people at a time.”).
Moreover, courts have long found a privacy interest in shielding one’s body from the opposite sex in a variety of legal contexts. E.g., Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (recognizing a “constitutional right to bodily privacy because most people have ‘a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating’” (quoting Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981))); Harris v. Miller, 818 F.3d 49, 59 (2d Cir. 2016); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494–95 (6th Cir. 2008); Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994); Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc).
Having established that the School Board has an important governmental objective in protecting students’ privacy interests in school bathrooms, we must turn to whether the bathroom policy is substantially related to that objective. Miss. Univ. for Women,
