USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 134 of 150
“fatally undermines its claim that women … are adversely affected by the presence of men” in the classroom).
For all these reasons, the School District failed to carry its evidentiary burden to establish a “substantial relationship” between the bathroom policy and student privacy.
- ii. The School District Presented No Evidence that the Policy Substantially Furthers Its Interest in Keeping Students Safe.
The School District likewise failed to produce any evidence showing a “substantial relationship” between its policy and student safety, either for Adams as a transgender student or for cisgender students using school bathrooms. Hogan, 458 U.S. at 725. Tellingly, the majority opinion does not rely on student safety as sufficient justification for the policy.
As an initial matter, the School District’s brief does not adequately explain what it means by “student safety.” Is it referring to transgender students’ safety? The safety of cisgender students? Or both? Is it suggesting that a transgender boy’s presence in the boys’ restroom makes it more unsafe for cisgender boys than when the boys’ restroom contains only cisgender boys, for example? The School District leaves us to guess. It makes a few conclusory and passing references to “student safety” in its en banc brief without pointing to any evidence, citing any case law, or otherwise explaining how the bathroom policy furthers student safety. Instead, it seems to rely only on stereotypes and assumptions.
