USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 59 of 80
demanding a perfect fit between the sex-based classification and the government interest at issue.
The school policy also substantially advances its objective to protect children from exposing their unclothed bodies to the opposite sex. Courts have long understood that the “special sense of privacy” that individuals hold in avoiding bodily exposure is heightened “in the presence of people of the other sex.” Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (internal quotation marks omitted); accord, e.g., Cookish v. Powell, 945 F.2d 441, 446 (1st Cir. 1991); Harris v. Miller, 818 F.3d 49, 59 (2d Cir. 2016); Doe v. Luzerne County, 660 F.3d 169, 177 (3d Cir. 2011); Strickler v. Waters, 641 F.2d 1375, 1387 (4th Cir. 1993); Moore v. Carwell, 168 F.3d 234, 236–37 (5th Cir. 1999); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 494 (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); Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995). And separating bathrooms by sex eliminates one of the most common opportunities for exposure to the opposite sex. The district court acknowledged the undisputed testimony that students at Adams’s school change clothing outside bathroom stalls and that bathrooms are ordinarily unsupervised. By separating bathrooms by sex, the policy eliminates the risk of bodily exposure where it is most likely to occur, which satisfies intermediate scrutiny. See Nguyen, 533 U.S. at
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