Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/60

 objective, it rejects both of the privacy interests that the school policy protects. For the first interest, the majority asserts that the Board incorrectly decided that its students had any privacy interest in using the bathroom away from “students who do not share the same birth sex.” Majority Op. at (internal quotation marks omitted). And although the majority appears to acknowledge that students have a privacy interest in not exposing their bodies, it does not accept that this interest can be sex-specific—that the interest is heightened when exposure is to the opposite sex. Instead, it asserts not only that Adams’s “anatomical differences” from boys are “irrelevant” to bathroom privacy, id. at, but also that thinking otherwise is an unconstitutional stereotype, id. at.

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 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