USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 57 of 80
Unsurprisingly, the Supreme Court and our sister circuits have long acknowledged a privacy interest in using the bathroom away from the opposite sex. Even as it ordered the Virginia Military Institute to enroll women, the Supreme Court acknowledged that “[a]dmitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” Virginia, 518 U.S. at 550 n.19 (citing Brief for Petitioner at 27–29 (arguing that integrating the institute would not require the sexes to be together “when sleeping, dressing and using the bathroom”)). Our sister circuits have likewise accepted that “the law tolerates same-sex restrooms … to accommodate privacy needs.” Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010); accord Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993); Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982); see also, e.g., Women Prisoners of the D.C. Dep’t of Corr. v. District of Columbia, 93 F.3d 910, 926 (D.C. Cir. 1996) (“[S]egregation of inmates by sex is unquestionably constitutional.”). This privacy interest has long been “appropriately harmonized” with the principle of equality. Ginsburg, Equal Rights Amendment, supra.
The schools’ policy is also “substantially related to the achievement” of its objective to protect this privacy interest. Virginia, 518 U.S. at 533 (internal quotation marks omitted). Indeed, the policy is a mirror image of its objective—it protects students from using the bathroom with the opposite sex by separating
57
