USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 130 of 150
for a classification “to survive heightened scrutiny”). “[S]heer conjecture and abstraction” will not do. Whitaker, 858 F.3d at 1052.
The only evidence the School District provided to link its legitimate privacy interest with the policy of assigning transgender students to the bathrooms corresponding with their birth-assigned sex was speculative in nature. Smith, the leader of the taskforce that produced the Best Practices Guidelines, explained that “a girl … refresh[ing] her makeup” in the bathroom might not want “someone else in there [who] may or may not make them feel uncomfortable.” Doc. 161 at 213. I assume this statement articulates, however inartfully, a legitimate privacy interest. But Smith then speculated—without any evidence to support her supposition—that the mere presence of, or example, a transgender girl could make a cisgender girl feel as uncomfortable in the bathroom as she might be in the presence of a cisgender boy. Similarly, the School District’s Deputy Superintendent for Operations, Mittelstadt, opined that the policy of assigning transgender students to the bathrooms of their birth-assigned sex made sense because “if [a cisgender student] [has] to go [to the restroom] and perhaps undress or clean up a stain on their clothing … , they [should] ha[ve] that opportunity to enter that area and receive that privacy.” Id. at 248. I agree with the district court that generalized guesses about how school-aged cisgender students may or may not feel with transgender students in the bathroom is not enough to carry the heavy weight of heightened scrutiny. The School District’s failure to carry its evidentiary
