USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 135 of 150
But even if the School District had done a better job of explaining in its brief on appeal, the evidentiary record would still be bare. “Any predictive judgments concerning group behavior and the differences in behavior among different groups must at the very least be sustained by meaningful evidence.” Lamprecht v. FCC, 958 F.2d 382, 393 (D.C. Cir. 1992) (Thomas, J.). As our sister circuit has recognized, a “sex-based classification cannot survive unless the ‘sex-centered generalization’ asserted in the law’s defense ‘actually comports with fact’ and is not ‘too tenuous.’” Lamprecht, 958 F.3d at 393 n.3 (alteration adopted) (quoting Craig v. Boren, 429 U.S. 190, 199, 204 (1976)); see Craig, 429 U.S. at 201–02 (rejecting maleness as a proxy for drinking and driving because a correlation of 2 percent was “unduly tenuous”). Upchurch, a School District witness, vaguely guessed that the bathroom policy probably prevented “people with untoward intentions” from “do[ing] things they ought not do.” Doc. 162 at 112. The district court found this speculation insufficient to carry the burden of heightened scrutiny. It further observed that “[t]here was no evidence that Adams encountered any safety concerns during the six weeks he used the boys’ restroom at Nease or when he does so in other public places.” Doc. 192 at 43. And there was no evidence that “Adams present[ed] any safety risk to other students or that transgender students are more likely than anyone else to assault or molest another student in the bathroom.” Id.
Nor was there evidence that other schools experienced threats to student safety resulting from their bathroom policies that
