USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 25 of 150
parties’ stipulation that students and parents objected to any bathroom policy that would commingle the sexes out of privacy concerns, among others. Cf. Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 677–78 (2010) (“[F]actual stipulations are ‘formal concessions … that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.’” (second alteration in original) (quoting 2 K. Broun, McCormick on Evidence § 254, at 181 (6th ed. 2006))).
The dissent repeats the district court’s mistakes. Of particular note, in asserting that the School Board only provided “speculative” evidence in support of linking the bathroom policy to the protection of students’ privacy interests, the dissent discounts the parties’ stipulation that parents and students within the School District objected to a bathroom policy that commingled the sexes based on privacy concerns, among others. Jill Pryor Dis. Op. at 45, 52 n.22. The dissent equates concerns about privacy in the bathroom with unlawful complaints about racial segregation. Id. at 52 n.22, 64–65. But that is a false equivalence. As explained above, it is well established that individuals enjoy protection of their privacy interests in the bathroom, so concerns about privacy in the bathroom are legitimate concerns. In contrast, it is well established that racially segregating schools is unconstitutional, so complaints about racially integrating schools are illegitimate complaints. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). Only by conflating legitimate concerns about privacy with illegitimate, and unconstitutional,
