USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 75 of 150
… Thus, unless there was a complaint, a transgender student could use the restroom matching his or her gender identity until he or she graduated and the school would be none the wiser.” Id. at 1306.
Given the testimony quoted above, the district court’s findings of fact are well supported by the record and are not clearly erroneous. See Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (“A [factual] finding that is ‘plausible’ in light of the full record—even if another one is equally or more so—must govern.”). And those findings are significant. They establish that if a high-school transgender student identical to Drew had registered in the St. Johns County school system for the first time as an incoming transfer student, his enrollment documents would have listed him as male and he would have been allowed to use the boys’ bathroom under the School Board’s policy.
If, as the majority says, gender at birth is the “driving force” behind equal protection jurisprudence, the high-school transgender transfer student described above is in all relevant respects identical to Drew. Yet he would be treated differently and allowed to use the boys’ bathroom even though he, like Drew, was born female and presents the same purported safety and privacy concerns that Drew allegedly does. This is irrational, and indefensible under intermediate scrutiny.
The School Board, which shoulders a “demanding” burden under intermediate scrutiny, see Virginia, 518 U.S. at 533, does not and cannot explain, much less justify, this state of affairs. If the
