USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 71 of 150
his Florida driver’s license and current Florida birth certificate changed to list him as male. See D.E. 160-1 at 95–96 (social transition), 99–101 (medical transition), 108–110 (legal transition).
The problem for the School Board is that a transgender student who is the same age as Drew and is like him in all relevant respects (including physical appearance and the stage of gender transition and gender identity) will be treated as a boy for purposes of the bathroom policy if he registers in the school system after starting gender transition and after changing his driver’s license and birth certificate to indicate that he is male. That transgender student, who presents the same safety and privacy concerns that the School Board claims Drew does, would nevertheless be allowed to use the boys’ bathroom. This is fatal under intermediate scrutiny.
Here is the testimony of Sallyanne Smith, the retired director of student services for the School Board:
Q: If a … transgender child comes in with a birth certificate that says their gender identity, they come in with a driver’s license, would St. Johns admit that student in their school?
A: You mean as a certain gender?
Q: That’s right … .
A: It’s based on the records in the registration packet. It’s based on the birth certificate, any physicals. There are forms that are filled out where a box is checked female or male. We specifically go by that
