USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 56 of 80
opportunities for a violation of the second interest. In short, it easily satisfies intermediate scrutiny, and even if questions remained, the Supreme Court has long required that we defer to the judgment of public-school officials in this context.
The schools’ first objective—to protect students’ interest in using the bathroom away from the opposite sex—is important. As then-Professor Ruth Bader Ginsburg explained, “Separate places to disrobe, sleep, [and] perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” Ruth Bader Ginsburg, The Fear of the Equal Rights Amendment, Wash. Post, Apr. 7, 1975, at A21. Indeed, “[a]cross societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females.” G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 734 (4th Cir. 2016) (Niemeyer, J., concurring in part and dissenting in part), vacated, 137 S. Ct. 1239 (2017). Separating bathrooms based on sex “dates back as far as written history will take us.” W. Burlette Carter, Sexism in the “Bathroom Debates,” 37 Yale L. & Pol’y Rev. 227, 287–88 (2018); see also id. at 258–61 (documenting sex-separated bathrooms in feudal Japan and in ancient Egypt, Greece, and Rome).
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