USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 30 of 80
against Mr. Adams was never written down does not make it any less arbitrary—and indeed may make it even more so. Cf. Whitaker, 858 F.3d at 1039 n.2 (“We will refer to the School District’s decision to deny [the plaintiff] access to the boys’ restroom as a ‘policy,’ although any such ‘policy’ is unwritten and its exact boundaries are unclear.”).
We relied on this reasoning regarding this issue in our now-vacated opinion as well, see Previous Majority Op. at 15–18, and the dissent to that opinion never claimed the issue was not presented. See generally Previous Dissenting Op. As further indication that the issue we address on appeal was fully presented, we note that both the District Court and this panel asked the School Board about the arbitrariness of the policy, providing ample notice of the issue and affording the School District ample opportunity to rebut it. See R. Doc. 198 at 82–83 (District Court asking what happens if a person has already transitioned before enrolling in the School District); Oral Arg. Recording at 12:01–12:43 (Dec. 5, 2019) (“There’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.”). But it did not. The School Board confirmed its unwritten bathroom policy relies solely on the information provided by a student at the time of enrollment. R. Doc. 198 at 83–84 (confirming this is how the policy works); Oral Arg. Recording at 12:40–12:43 (Dec. 5, 2019) (same); see also id. at 4:34–4:52
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