USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 80 of 150
Board can only rely on administrative convenience to refuse that course of action for its bathroom policy.[1]
III
On this record, the School Board’s unwritten bathroom policy fails under intermediate scrutiny. The policy allows transgender students just like Drew whose initial enrollment documents set out their current gender identity to use the bathrooms associated with that identity. Because such students pose the same claimed safety and privacy concerns as Drew, the policy can only be justified by administrative convenience, which is constitutionally insufficient. And given that the student database already identifies Drew as male for all other purposes, it is difficult to understand why the School Board could not accept new or revised enrollment documents for Drew identifying him as male.
- ↑ The School Board has also instituted a policy creating a column on the “official student data panel” for “affirmed name.” D.E. 161 at 112. This affirmed column “populates [the school’s] grade book, … BASIS, which is [the school’s] information center, … another database called Virtual Counselor, so that … child’s affirmed name is changed on all those databases.” Id. at 113. The purpose of the affirmed name column is to inform teachers of a student’s preferred name when it may be different from the student’s legal name. See id. Though Drew did not change his name, this affirmed column shows that the School Board could easily go back into its databases and records to update information that is outdated and/or may be contrary to a student’s gender identity.
