Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/49

 F.3d 709, 734 (4th Cir. 2016) (Niemeyer, J., concurring in part and dissenting in part), vacated, 137 S. Ct. 1239 (2017). Separating bathrooms based on sex “dates back as far as written history will take us.” W. Burlette Carter, Sexism in the “Bathroom Debates,” 37 Yale L. & Pol’y Rev. 227, 287–88 (2018); see also id. at 258–61 (documenting sex-separated bathrooms in feudal Japan and in ancient Egypt, Greece, and Rome).

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