USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 78 of 150
State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (“[C]ourts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is applied.”) (citation and internal quotation marks omitted).
On the ground, the School Board’s restroom policy treats physically-similar transgender students differently based solely on their initial enrollment documents. And because the School Board’s claimed safety and privacy concerns presented by someone just like Drew are the same for similarly-situated high-school transgender students who enroll with documents indicating their current gender identity, the School Board’s claimed safety and privacy rationales go out the window. The only thing left to justify the School Board’s refusal to accept new or revised enrollment paperwork identifying Drew as male is administrative convenience, and that does not satisfy intermediate scrutiny. See, e.g., Craig, 429 U.S. at 198; Wengler, 446 U.S. at 151–52.
Apparently understanding the difficulty posed by the School Board’s reliance on enrollment documents, the majority says that Drew did not challenge the constitutionality of the enrollment documents policy in the district court. That assertion, however, is the proverbial straw man. At issue is the validity of the School Board’s bathroom policy, and no one is claiming that the enrollment documents policy independently violates the Constitution. To satisfy intermediate scrutiny, which is a “demanding” standard, the
