USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 21 of 150
present. Indeed, this privacy interest is heightened yet further when children use communal restrooms … .”). And even the more generally acceptable notion that the protection of individual privacy will occasionally require some segregation between the sexes is beyond doubt—as then-Professor Ruth Bader Ginsburg noted, “[s]eparate 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 (emphasis added).
It is no surprise, then, that the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence. In fact, “sex-separation in bathrooms dates back to ancient times, and, in the United States, preceded the nation’s founding.” W. Burlette Carter, Sexism in the “Bathroom Debates”: How Bathrooms Really Became Separated by Sex, 37 Yale L. & Pol’y Rev. 227, 229 (2019). The Supreme Court acknowledged this when it stated that admitting women to the Virginia Military Institute for the first time “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. So, too, have our sister circuits. See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010) (“[T]he law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs.”); Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (“[Society has given its]
