USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 139 of 150
reflect a different gender before enrolling in the School District, then that transgender student would be able to use the bathrooms matching his or her gender identity. The School Board also admitted that it had no process for identifying transgender students in its student population, so transgender students could violate the policy and the School District would be none the wiser. See also Jordan Dissenting Op. at 4–8. At the same time, if after enrollment a transgender student had his official documents changed to reflect his sex consistently with his gender identity, the School District will not accept the revised documents for purposes of the bathroom policy. Therefore, the policy is arbitrary in that some transgender students—like Adams—are restricted by the bathroom policy, while other transgender students are unaffected by it.
And recall Smith’s admission that she hopes transgender students will ignore parts of the bathroom policy. When asked whether “a transgender girl, with girls’ parts, in terms of her breasts and everything else” should use the boys’ restroom, Smith said that she would rather that student avoid using the boys’ restroom. Doc. 161 at 209. So the bathroom policy is arbitrary and “disingenuous,” to use the district court’s word, in this sense too: the School District hopes that transgender students will follow parts of the bathroom policy and ignore other parts of it. Doc. 192 at 28 n.30.
The arbitrary way in which the School District enforces the policy offers yet another reason why the bathroom policy fails
