USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 13 of 80
To begin, the policy fails heightened scrutiny because it targets some transgender students for bathroom restrictions but not others. In this way, the policy is arbitrary and fails to advance even the School District’s purported interest. The School District directs students to use boys’ and girls’ bathrooms based on the sex indicated on the students’ enrollment documents. Even if a student later provides the District with a birth certificate or driver’s license indicating a different sex, the original enrollment documents control. The enrollment forms, however, say nothing about a student’s assigned sex at birth or transgender status. They ask only whether a student is male or female. As the District Court expressly found, the School Board conceded at trial that if a transgender student enrolled with documents updated to reflect his gender identity, he would be permitted to use the restroom matching his legal sex. The School District acknowledges that its policy does not fit its purported goal of ensuring student privacy, to the extent that some of the District’s transgender students may be using school restrooms that match their legal sex. See Oral Arg. Recording at 12:05–12:43 (Dec. 5, 2019) (School District agreeing that “[t]here’s … a bit of arbitrariness, because depending on when somebody arrives at your school, they are treated differently … based on how far into the transition process they are.”); see also id. at 4:34–4:52 (“Let’s suppose there was a transgender boy … who transfers into the school district, moves from another state, in ninth grade, with the
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