Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 44 of 70 PageID 10722
this Court finds concern for student safety is not an “exceedingly persuasive justification” for upholding the school bathroom policy. Virginia, 518 U.S. at 556; see, e.g., Evancho, 237 F. Supp. 3d at 291 (finding safety concerns were unfounded given availability of disciplinary code and lack of record of any threat that a student would pose as transgender to gain access to a restroom); Highland, 208 F. Supp. 3d at 87677 (finding testimony from other districts showed parents’ safety concerns to be “wholly unfounded in practice” and noting that any worry about sexual activity in the bathrooms was “logical[ly] flaw[ed]” given that gay males were not excluded from boys’ restrooms and gay females were not excluded from girls’ restrooms).
- 3. Additional Considerations
Although the Court has found that the School Board’s concerns about privacy and safety are only conjectural (and therefore insufficient to survive intermediate scrutiny), the School District says it creates policy with an eye toward minimizing the risk of future problems, even if none have ever occurred. With that in mind, the Court has carefully considered whether the eleven gender-neutral single-stall bathrooms on campus (which are open to all students) provide an appropriate accommodation for Adams such that more is not required. They do not. While there are more stalls available in gender-neutral bathrooms (eleven) than in the multi-stall boys’ restrooms (ten), some of them are further away from Adams’ classes. More importantly, however, Adams testified to the stigma that attaches to his use of gender-neutral
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