USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 25 of 80
birth certificate” and that “a transgender student who changed the sex on his birth certificate before enrolling could use the bathroom matching” that updated information).[1]
- ↑ We also pause to correct the record on another distortion by the dissent. The dissent says the School District bases its bathroom assignments on “a pre-enrollment physical examination performed by the student’s doctor.” Dissenting Op. at 43. There are at least two things wrong with the dissent’s assertion. First, there is no record support for the dissent’s apparent assumption that Mr. Adams—or any student in the School District—is required to provide a medical report of a physical examination. The dissent relies on Florida Statute § 1003.22(1), but that statute merely requires that “each child … present a certification of a school-entry health examination performed within 1 year before enrollment in school.” (Emphasis added). Here, the record shows that the School District merely tells enrolling students to comply with Florida law’s requirement to undergo a “health examination” and self-report their sex by writing it into a box on the enrollment health form. The record shows nothing more. Instead, the evidence shows that self-reporting of medical information is all that is required. As the School District’s lawyer who advised it on its bathroom policy testified, “As a statutory condition of enrollment, a student is required to have a physical conducted by a doctor. So that report is part of the enrollment package.” R. Doc. 162 at 50 (emphasis added); see also R. Doc. 192 at 4 n.6 (identifying Frank D. Upchurch as a long-time School Board attorney who advised the Board on its “Best Practices Guidelines” and “who is well familiar with School Board policies”). The “report” the School Board’s lawyer spoke of is a self-provided account of the student’s medical history, which, when it comes to sex, requires only that a student self-report that information. See R. Doc. 162 at 50 (Upchurch testifying: “There is a -- two boxes on that -- sort of the cover sheet of the form. And it says M/F. And the student checks -- the student’s parent checks one.”). The dissent can point to no evidence saying otherwise.
Second, there is no record support for the dissent’s apparent assumption that the School District actually bases its bathroom assignments on a health examination, as opposed to the self-reporting of the student’s sex in the enrollment documents. The record merely shows that the School District’s lawyer “speculated” that students could have had a physical, but he never said the School Board enforces its bathroom policy using information from a physical. In any event, we cannot discern from this record how the dissent got the idea that a certification of a routine “health examination,” which is all that is required under Florida law, requires that a doctor examine, much less report to a school about, a child’s genitalia.
We think the School District’s “health exam form speaks for itself, and contains no indicator” for a doctor’s examination; “it simply includes a blank box for the child’s sex.” It is undisputed that the School District does not inspect students’ anatomy before they use District bathrooms. The School District relies solely on the information provided by the students to enforce its bathroom policy, and the dissent has not pointed to any evidence to the contrary. Rather than accept the record, the dissent continues to push its reimagining of the facts, which even the School District did not advance. See Oral Arg. Recording at 5:43–6:22 (Dec. 5, 2019) (Chief Judge Pryor: “I thought that there was also a state-mandated physical examination for
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