USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 67 of 80
Id. It does not explain what it means by those terms, and it again does not acknowledge that students can have a heightened interest in avoiding the exposure of their bodies to members of the opposite sex.
The majority’s understanding of each interest contravenes precedent. Its decision to limit students’ privacy interest to bodily exposure ignores that children also have a distinct privacy interest in using the bathroom away from the opposite sex. See, e.g., Virginia, 518 U.S. at 550 n.19; Chaney, 612 F.3d at 913; Faulkner, 10 F.3d at 232; Cumbey, 684 F.2d at 714; see also Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 626 (1989) (concluding that urination is “an excretory function traditionally shielded by great privacy”). Similarly, the majority’s continued failure to acknowledge that the privacy interest in avoiding bodily exposure is heightened when children of the opposite sex are present ignores longstanding precedent, not to mention common sense. See, e.g., Fortner, 983 F.2d at 1030; Harris, 818 F.3d at 59; Luzerne County, 660 F.3d at 177; Brannum, 516 F.3d at 494; Canedy, 16 F.3d at 185.
Finally, the former majority opinion’s alternative contention that the privacy interests at issue are invalid because they rest on impermissible sex stereotypes remains incorrect. According to the former majority opinion, the school policy “presumed every person deemed ‘male’ at birth would act and identify as a ‘boy’ and every person deemed ‘female’ would act and identify as a ‘girl.’” Vacated
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