USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 79 of 150
“discriminatory means employed” must be “substantially related to the achievement of those objectives.” Virginia, 518 U.S. at 533. So the School Board must show that the means employed actually further its asserted interests. Here the means chosen by the School Board—the enrollment documents—actually undermine the claimed safety and privacy interests for the bathroom policy and at best amount to justification based on administrative convenience. On this point the majority has no satisfactory answers.
To make matters worse for the School Board, its student database already contains a pop-up window notifying teachers about Drew’s “desire to be called upon with male pronouns.” D.E. 161 at 253. As the district court found, the School Board “has agreed to treat [Drew] as a boy in all other respects, but its position is that [his] enrollment documents and official school records identify him as a female, and he has not presented any evidence that he is a ‘biological male.’” Adams, 318 F. Supp. 3d at 1308. If the School Board’s own records already take into account Drew’s identification as male, it is difficult to see why that same gender identification could not govern for purposes of the bathroom policy. All it would take is for the School Board to accept the new (or revised) enrollment documents (such as a new form, a new birth certificate, and a new driver’s license) identifying Drew as male. Because it is already treating Drew as male for all other purposes, the School
