USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 136 of 150
permitted transgender students to use the school bathrooms matching their gender identity. Recall that Valbrun-Pope, a BCPS official, testified that “with 271,000 students, 300 schools, and implementation over … five years, [BCPS] ha[d] not had issues related to safety in the restrooms that are specifically connected to transgender students.” Doc. 161 at 64. Kefford was unaware of “any child having an issue with a transgender child using the bathroom that aligns with their gender identity.” Id. at 118. And Aberli, a JCPS high school principal, said he had encountered no safety issues due to the implementation of a bathroom policy allowing transgender students to use the restrooms aligning with their gender identity.
What is more, Adams showed the bathroom policy could in fact undermine student safety. At trial, Smith was asked whether it would be safe for “a transgender girl, with girls’ parts, in terms of her breasts and everything else” to use the boys’ restroom. Id. at 209. Smith admitted that it would be more “comfortable and safe with all parties involved” if that transgender girl did not use the boys’ restroom. Id.
Having failed either to explain what it meant by student safety or to introduce any evidence at trial to support its speculation, the School District failed to carry its evidentiary burden to show a “substantial relationship” between its bathroom policy and student safety. Hogan, 458 U.S. at 725. Because the School Board
