Darcy Corbitt v. Secretary of the Alabama Law Enforcement Agency

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10486

____________________

DARCY CORBITT,

DESTINY CLARK,

JANE DOE,

Plaintiffs-Appellees,

JOHN DOE,

Plaintiff,

versus

SECRETARY OF THE ALABAMA LAW ENFORCEMENT

AGENCY,

DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY,

CHIEF OF THE DRIVER LICENSE DIVISION,

DRIVER LICENSE SUPERVISOR IN THE DRIVER LICENSE

DIVISION,

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2 Opinion of the Court 21-10486

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:18-cv-00091-MHT-SMD

____________________

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

BRANCH, Circuit Judge:

Alabama driver’s licenses display biographical information

about the driver, including the driver’s sex. The sex listed is taken

from the driver’s birth certificate. In some states, that is the end of

the matter, because certain states do not allow drivers to change

the sex listed on their license or birth certificate. 1 But in Alabama,

1 See, e.g., Oklahoma Exec. Order. No. 2023-20 (Aug. 1, 2023) (ordering that,

for purposes of administrative rules and disputes, sex shall be defined by

reference to the ordinary function of a person’s reproductive system); Tenn.

Comp. R. & Regs. 1340-01-13-.18(2)(c) (driver’s licenses must display the

licensee’s sex), and Tenn. Code Ann. § 1-3-105(c)(defining sex as “immutable

biological sex as determined by anatomy and genetics existing at the time of

birth”); Fla. Dep't of Highway Safety and Motor Vehicles, Driver License

Operation Manual-Issuance Requirements-IR08-Gender Requirements (Jan.

26, 2024), https://perma.cc/AQY5-Y395 (rescinding a guidance document

permitting the alteration of the gender marker on an individual’s license as

“not supported by statutory authority”); Kan. Stat. Ann. § 77-207(a)(1), (c)

(defining sex to mean biological sex); Foster v. Stanek, No. 18-2552-DDC-KGG,

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21-10486 Opinion of the Court 3

a guidance document called “Policy Order 63” permits “an

individual wishing to have the sex changed on their Alabama

driver[’s] license due to gender reassignment surgery” to change

their sex by submitting certain documentation. In particular, the

individual must submit a letter from the physician who performed

the reassignment procedure, or else an amended birth certificate

reflecting a changed sex designation. See Ala. Code § 22-9A-19(d).

In this case, Plaintiffs, transgender residents of Alabama,

seek to change the sex on their driver’s licenses without

undergoing (what Alabama accepts as) sex-change surgery. They

argue that Policy Order 63 violates the Equal Protection and Due

Process Clauses of the Fourteenth Amendment, as well as the Free

Speech Clause of the First Amendment. The district court entered

judgment in favor of Plaintiffs, declaring Policy Order 63

unconstitutional under the Equal Protection Clause and enjoining

the enforcement of the Policy.

The district court found that Policy Order 63 “classifies [the

Plaintiffs] by sex” because it “mak[es] the content of people’s driver

licenses depend on the nature of their genitalia.” Thus, applying

the heightened form of constitutional scrutiny reserved for sex-

based classifications, the district court concluded that Alabama

2023 WL 5625433, at *1 (D. Kan. Aug. 31, 2023) (granting a motion for relief

from judgment based on the passage of SB 180, “requir[ing] all Kansas birth

certificates to identify a person’s sex as the one assigned to the person at

birth”); Kansas ex rel. Kobach v. Harper, No. SN-2023-CV-422 (Shawnee Cnty.

Dist. Ct. Mar. 11, 2024), https://perma.cc/SD84-24WZ (ordering Kansas

Department of Revenue officials to comply with SB 180).

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4 Opinion of the Court 21-10486

“ha[d] not presented an adequate justification” for the Policy

Order.

After review, and with the benefit of oral argument, we

conclude that decision was error. Policy Order 63 does not violate

the Equal Protection Clause because it does not impose a sex-based

classification—the Policy Order does not single out or

disadvantage anyone because of their sex, or regulate based on

stereotypes; rather, it imposes the same objective conditions on

everyone. Our recent decision in Eknes-Tucker v. Governor of

Alabama, 80 F.4th 1205, 1228 (11th Cir. 2023), confirms as much,

and it controls the analysis here. That case establishes that rational

basis review—the most deferential standard under the Equal

Protection Clause—applies. Policy Order 63 survives that review

because it rationally advances Alabama’s legitimate interest in

providing a consistent set of requirements to amend the sex listed

on state documents like driver’s licenses and birth certificates.

We also consider and reject Plaintiffs’ due process and First

Amendment challenges. Because Policy Order 63 deals only with

when and how the State will revise information on state

documents, Policy Order 63 neither violates Plaintiffs’ right to

informational privacy, nor infringes their right to refuse medical

care like sex-change surgery, under our due process precedents.

For similar reasons, Policy Order 63 does not compel Plaintiffs to

speak the government’s message about their sex or gender identity

in violation of the First Amendment—after all, driver’s licenses are

government speech, not private speech.

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Thus, for the reasons explained in more detail below, we

reverse the judgment of the district court.

I. BACKGROUND

Alabama law requires that driver’s licenses “bear . . . a

distinguishing number assigned to the licensee and a color

photograph of the licensee, the name, birthdate, address, and a

description of the licensee.” Ala. Code § 32-6-6 (2009). According

to the Alabama Law Enforcement Agency (“ALEA”), the statutory

“description of the licensee” refers to the licensee’s physical

description, including sex, height, weight, hair color, and eye color.

A birth certificate is the “default” for establishing a licensee’s sex.

Sometime around 2004, the Alabama Department of Public

Safety adopted an unwritten practice of permitting an individual

who had sex-change surgery to change the sex designation on their

driver’s license. Under the unwritten policy, individuals had to

produce both an amended birth certificate and a letter from the

physician who performed their gender reassignment surgery.

Alabama later adopted a written policy—Policy Order 63—

to formalize the existing practice. In 2015, the Policy was revised

to “allow more latitude for people requesting” a change to their sex

designations on their driver’s licenses by requiring either an

amended state birth certificate or a letter from the physician that

performed the reassignment procedure—not both.

The current version of Policy Order 63 requires the

submission of either an amended birth certificate reflecting a

changed sex designation or a letter from the physician who

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6 Opinion of the Court 21-10486

performed the reassignment procedure. Specifically, the Policy

states:

It is the policy of the Chief of the Driver License

Division that an individual wishing to have the sex

changed on their Alabama driver license due to

gender reassignment surgery [is] required to submit

to an Examining office OR the Medical Unit the

following:

1. An amended state certified birth certificate

and/or a letter from the physician that

performed the reassignment procedure.

The letter must be on the physician’s

letterhead.[ ] 2

The amended birth certificate option means that Alabama accepts

altered birth certificates from other states without regard to the

other state’s procedures for amending the individual’s sex. For an

Alabama birth certificate, the procedure for changing the sex listed

also requires proof of a surgical sex-change procedure. See Ala.

Code § 22-9A-19(d). 3

2 Despite the appearance of indenting an item “1” in describing “the following”

sufficient items, number 1 is the only item on the list.

3 Alabama Code § 22-9A-19(d) provides:

Upon receipt of a certified copy of an order of a court of

competent jurisdiction indicating that the sex of an individual

born in this state has been changed by surgical procedure and

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In 2018, Darcy Corbitt, Destiny Clark, and Jane Doe4 sued

the following Alabama officials in their official capacities: Hal

Taylor, the Secretary of the ALEA; Charles Ward, the Director of

Public Safety; Deena Pregno, the Chief of the Driver License

Division; and Jeannie Eastman, a Medical Unit supervisor.

Plaintiffs challenged Policy Order 63 under 42 U.S.C. § 1983,

claiming it violated the Free Speech Clause of the First

Amendment, the Fourteenth Amendment’s Equal Protection

Clause, and their right to informational privacy and interest in

refusing unwanted medical treatment under the Fourteenth

Amendment’s Due Process Clause.5 Plaintiffs alleged that Policy

Order 63 “serve[s] no legitimate governmental interest” and is

“directed solely at transgender people [to] discriminate against

them on the basis of sex, as well as on the basis of transgender

status.” The evidence in the record shows the following.

that the name of the individual has been changed, the

certificate of birth of the individual shall be amended as

prescribed by rules to reflect the changes.

4 The district court granted Jane Doe’s motion for leave to proceed under a

pseudonym and for a protective order under our precedent in Doe v. Frank, 951

F.2d 320, 324 (11th Cir. 1992) (“Courts have permitted plaintiffs to proceed

anonymously in cases involving mental illness, homosexuality, and

transsexuality.” (citations omitted)). The motion was unopposed below, and

the district court’s order is not challenged on appeal.

5 Plaintiffs did not challenge the constitutionality of the statute permitting an

individual who has had sex-change surgery to change the sex listed on their

birth certificate. See Ala Code § 22-9A-19(d).

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Plaintiffs Corbitt, Clark, and Doe are all transgender

women, meaning they were born males and now identify as

females. Each of their Alabama driver’s licenses lists their sex as

“male,” and they are each seeking to change their sex designation

to “female.”

Corbitt grew up in Alabama but moved to North Dakota as

a young adult. While in North Dakota, Corbitt changed the sex

listed on Corbitt’s North Dakota driver’s license to “female.” After

returning to Alabama in 2017, Corbitt could not obtain a driver’s

license with a “female” sex designation without the documentation

required by Policy Order 63 because Alabama records listed

Corbitt’s sex as male. Corbitt explained in a sworn declaration that

“undergo[ing] surgical procedures . . . [is not] right for me at this

time.” Accordingly, Corbitt is unable to use Policy Order 63 to

change the sex on Corbitt’s Alabama driver’s license.

Clark lives in Alabama and has unsuccessfully attempted to

change the sex designation on Clark’s license from “male” to

“female” multiple times. Clark had “medically necessary gender-

conforming surgery” but was denied a sex change on Clark’s

driver’s license because Clark did not get “the full sexual

reassignment surgery.”

Finally, Doe also lives in Alabama and has unsuccessfully

tried to change the sex listed on Doe’s Alabama driver’s license

multiple times. Doe has engaged in hormone treatment since 2013

but “has not yet been able to receive any gender-confirmation

surgical procedures because of cost.”

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Plaintiffs allege that they are personally harmed by

Alabama’s Policy because, as transgender women, once police

officers or other people see their licenses with their sex listed as

male, they are at a higher risk of being attacked, harassed, or

treated poorly. And Plaintiffs assert that when they present their

licenses with the incorrect sex, they are compelled to endorse a

message about their gender with which they strongly disagree.

Plaintiffs’ expert, Dr. Nicholas Gorton—a physician licensed

to practice in California—submitted a declaration explaining that

“[t]ransgender people who are diagnosed with [g]ender [d]ysphoria

may, as part of their prescribed medical treatment plan, change

their legal name and their gender marker on official documents

such as [a] driving license, passport, birth certificate, and social

security card.” Dr. Gorton asserted that “[the] process of changing

identity documents has profound health benefits for patients with

gender dysphoria as well as significant social, legal, and safety

implications for transgender people navigating the world in

accordance with their gender identity.” Dr. Gorton also asserted

that “Policy [O]rder 63 provides no medical or scientific

justification for [its] decision” and that, “[w]ere Alabama to decide

to choose the route that is most clinically appropriate, [it] would

adopt policies [in which] transgender individuals submit a form

where they certify their gender, [and] the genders allowed are

three: male, female, and none or non-binary, and their identity

document is changed based on the patient’s affirmation.”

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Defendant Deena Pregno, the Chief of the ALEA Driver

License Division, testified in her deposition that Policy Order 63

furthers two state interests. First, she explained that the Policy was

based on the state statute for amending a birth certificate to change

one’s sex and that Alabama “want[s] to be consistent . . . [by]

requiring the same types of documents when [it is] dealing with the

same type of situation.” In other words, Alabama wants to have a

paper trail that links its identification documents together so that,

if there are different sex designations on different documents,

Alabama can know “why [they are] different.” Thus, according to

Pregno, Policy Order 63 serves the interest of maintaining

consistency with requirements for Alabama birth certificates

because the Policy Order is “consistent with the State of Alabama’s

requirements to change [one’s] sex designation.” Second, Pregno

explained that Policy Order 63 helps law enforcement officers

identify the person they are interacting with, determine the proper

search procedures to use, and choose which arrest and post-arrest

procedures to use (like booking procedures, for example).

In a similar vein, Defendants’ expert, Dr. Donald Leach—an

expert in correctional administration—testified in a deposition that

“it’s helpful from a correctional perspective . . . for there to be a

policy that leads to consistent information about sex on a driver’s

license.” In his opinion, “there is a governmental interest in having

a standardized definition of sex, such as that established in Policy

Order 63 for law enforcement and administrative purposes . . . so

there is consistency in the development and application of

administrative and operational policies and procedures.” He

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agreed that “correctional administrators typically take into account

the sex designation on a driver’s license in deciding how to apply

. . . sex-based policies” and testified that sex is “probably . . . one of

the foremost pieces of information that’s used when booking an

individual.”

After the district court denied the parties’ cross-motions for

summary judgment, the parties agreed to resolve this case on the

evidence and briefs they submitted to the district court. The parties

agreed that the court could resolve disputed issues of fact and draw

reasonable factual inferences and conclusions from the evidence.

After conducting a “bench trial on the papers,” the district court

entered judgment in favor of Plaintiffs and enjoined Defendants

“from failing to issue to [P]laintiffs . . . new driver[’s] licenses with

female sex designations, upon application for such licenses by

them.” In its accompanying order, the district court concluded that

Policy Order 63 is unconstitutional. The district court explained

that Policy Order 63 “classifies by sex” “[b]y making the content of

people’s driver[’s] licenses depend on the nature of their genitalia.”

As such, the district court reasoned that the Policy is subject to

intermediate scrutiny under the Equal Protection Clause.

Applying intermediate scrutiny, the district court concluded

that Alabama had not presented “adequate justification[s] for

Policy Order 63” and “the [P]olicy [was] inadequately tailored to

advancing those interests.” Specifically, the district court found

that Alabama’s first stated interest—“maintaining consistency

between the sex designation on an Alabama birth certificate and an

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Alabama driver[’s] license”—was insufficient to satisfy

intermediate scrutiny because “marginal administrative

convenience . . . cannot support a sex-based policy.” And although

the district court found that Alabama’s second stated interest—

“facilitating identification by law enforcement”—was “important,”

the court concluded that this interest had not “played any part in

ALEA’s calculus when it developed Policy Order 63.” Thus, the

district court concluded that it “need not reach the question

whether [the Policy] is adequately tailored to advancing that

interest” because the State’s interest may not be “hypothesized or

invented post hoc in response to litigation.”

Because the district court concluded that Policy Order 63

violated the Equal Protection Clause, it did not reach Plaintiffs’

other constitutional claims. The State timely appealed the district

court’s order and judgment.

II. STANDARD OF REVIEW

This case comes to us in the unusual posture of what the

parties call a “bench trial on the papers.”6 See Fla. Int’l Univ. Bd. of

Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1253 (11th Cir. 2016)

(discussing the “limited circumstances wherein the district court

may treat cross-motions for summary judgment as a trial and

resolve the case on the merits” (quotation omitted)). On review of

such a decision, “we . . . review legal questions de novo but . . .

6 Both parties consented to this arrangement below, and neither complains

about it on appeal.

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21-10486 Opinion of the Court 13

factual findings only for clear error . . . .” Id. “A factual

determination is clearly erroneous only if we are left with a definite

and firm conviction that a mistake has been committed.” Smith v.

Owens, 13 F.4th 1319, 1325 (11th Cir. 2021) (quotation omitted).

III. DISCUSSION

Each of Plaintiffs’ claims was presented to and fully briefed

before the district court and this Court on appeal. Accordingly, we

review them all. See Singleton v. Wulff, 428 U.S. 106, 121 (1976)

(“The matter of what questions may be taken up and resolved for

the first time on appeal is one left primarily to the discretion of the

courts of appeals, to be exercised on the facts of individual cases.”);

cf. Kernel Recs. Oy v. Mosley, 694 F.3d 1294, 1298 n.5 (11th Cir. 2012)

(declining to exercise our jurisdiction to consider alternative

grounds). We begin with Plaintiffs’ Equal Protection Clause claim

and then discuss Plaintiffs’ due process and First Amendment

claims.7

A. Equal Protection Claim

The Fourteenth Amendment prohibits “any State” from

“deny[ing] to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend XIV, § 1. “The basic framework

7 On appeal, Alabama argues that two of the three plaintiffs—Corbitt and

Clark—brought their claims after the statute of limitations period had expired.

Alabama, however, has not raised this defense against the third plaintiff, Jane

Doe. Accordingly, we must decide the constitutional claims for at least one

Plaintiff. Because we reject all the constitutional claims on the merits, we need

not pass on the statute of limitations issue as to Corbitt and Clark.

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of [an equal-protection] analysis . . . is well settled.” Maher v. Roe,

432 U.S. 464, 470 (1977). First, we must decide whether a state law

“operates to the disadvantage of some suspect class.” Id. (quoting

San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973)). If so, we

apply a heightened judicial scrutiny. See id. “If not, the [state law]

must still be examined to determine whether it rationally furthers

some legitimate, articulated state purpose and therefore does not

constitute . . . invidious discrimination.” Id. (quoting Rodriguez, 411

U.S. at 17 (second alteration adopted)).

Sex is a “suspect class” entitled to heightened judicial

scrutiny. “In the Supreme Court’s leading precedent on [sex]-based

intermediate scrutiny under the Equal Protection Clause, the

Court held that heightened scrutiny applies to ‘official action that

closes a door or denies opportunity to women (or to men).’” Eknes-

Tucker, 80 F.4th at 1228 (quoting United States v. Virginia, 518 U.S.

515, 532 (1996)); see also id. at 1233 (Brasher, J., concurring) (“The

Equal Protection Clause prohibits ‘giving a mandatory preference

to members of either sex over members of the other.’” (alteration

adopted) (quoting Reed v. Reed, 404 U.S. 71, 76 (1971))). In this way,

precedent directs us to ensure that sex is not used as an “inaccurate

proxy for other, more germane bases of classification.” Craig v.

Boren, 429 U.S. 190, 198 (1976). And, along the same lines, the

Equal Protection Clause forbids classifications based on sex

stereotypes. See Glenn v. Brumby, 663 F.3d 1312, 1314, 1316–17,

1320 (11th Cir. 2011).

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If a law does draw a sex-based classification, it “will pass

constitutional muster only if it satisfies intermediate scrutiny.”

Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 801 (11th Cir. 2022)

(en banc). “To satisfy intermediate scrutiny, the government must

show ‘that the classification serves important governmental

objectives and that the discriminatory means employed are

substantially related to the achievement of those objectives.’” Id.

(quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

In accordance with this “well settled” framework, we first

determine what standard of review applies to Policy Order 63—i.e.,

whether the Policy discriminates against a suspect class and thus

triggers heightened scrutiny—and then apply that standard of

review to the Policy. In the end, we conclude that the Policy does

not impose a sex-based classification, and thus does not implicate a

suspect class or trigger heightened scrutiny, and we hold that

Policy Order 63 survives rational basis review. We address each

step in turn.

i. Policy Order 63 does not impose a sex-based

classification.

To begin, we must decide whether Policy Order 63 imposes

a sex-based classification. If so, then we apply intermediate

scrutiny and require the “classification[] [to] bear a close and

substantial relationship to important governmental objectives.”

Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979).

With these principles in mind, we turn back to the language

of the Policy:

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It is the policy of the Chief of the Driver License

Division that an individual wishing to have the sex

changed on their Alabama driver license due to

gender reassignment surgery [is] required to submit

to an Examining office OR the Medical Unit the

following:

1. An amended state certified birth certificate

and/or a letter from the physician that performed

the reassignment procedure. The letter must be

on the physician’s letterhead.

We conclude that this language is “neutral in the sense that

it is not gender-based”—i.e., the Policy does not impose a sex-based

classification. Id. at 274. It does not distinguish between males and

females in any respect. Rather, it applies to all “individual[s]

wishing to have the[ir] sex changed on their Alabama driver[’s]

license[.]” Individuals wishing to have their sex designation

changed from male to female, and individuals wishing to have their

sex designation changed from female to male, are all covered by

the Policy and subject to the same requirements. See Eknes-Tucker,

80 F.4th at 1228 (concluding that an Alabama statute prohibiting

the prescription or administration of puberty blockers and cross-

sex hormones did not impose a sex-based classification where “the

statute [did] not establish an unequal regime for males and

females” and “establishe[d] a rule that applie[d] equally to both

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sexes”). In short, the Policy does not separate or classify individuals

based on sex. 8

Our conclusion does not deny that sex is the subject matter

at issue in the Policy. Indeed, the Policy lays out the document

submission requirements for “an individual wishing to have the sex

changed on their Alabama driver[’s] license due to gender

reassignment surgery.” But the Equal Protection Clause does not

proscribe all laws and regulations that relate to or implicate sex in

their subject matter. See id. at 1227–28 (rejecting the argument that

a statute “directly classifies on the basis of sex [merely] because it

uses explicitly sex-based terms” (quotation omitted)); see also id. at

1233 (Brasher, J., concurring) (“I see the word ‘sex’ in this law. But

I don’t see a sex classification—at least, not as the idea of a sex

8 Indeed, the Policy’s failure to classify based on sex stands in sharp contrast to

the body of cases that address and analyze sex-based classifications under the

Equal Protection Clause. See, e.g., Hogan, 458 U.S. at 720 (analyzing a public

university’s policy of denying otherwise qualified males the right to enroll for

credit in its nursing school because of their sex); Craig, 429 U.S. at 192

(analyzing a state statute that prohibited the sale of certain alcohol to males

under the age of 21 and to females under the age of 18); Reed, 404 U.S. at 73

(analyzing a probate statute that provided that “males must be preferred to

females”); Brumby, 663 F.3d at 1313–20 (holding that “a government agent

violates the Equal Protection Clause’s prohibition of sex-based discrimination

when he or she fires a transgender . . . employee because of his or her gender

non-conformity”). As discussed, these cases find sex-based classifications

where official action provides different opportunities to men and women as

such or rely on gender stereotypes. See Eknes-Tucker, 80 F.4th at 1228–29

(surveying cases). Policy Order 63 simply does not distinguish between men

and women in any way. See id.

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18 Opinion of the Court 21-10486

classification appears in our equal protection [cases].”); Geduldig v.

Aiello, 417 U.S. 484, 495–97, 497 n.5 (1974) (holding that a state

insurance policy excluding pregnancy coverage did not classify on

the basis of sex, explaining that “while it is true . . . that only women

can become pregnant, it does not follow that every legislative

classification concerning pregnancy is a sex-based classification”).

Rather, the Equal Protection Clause is concerned with differential

treatment, especially when the differential treatment is due to sex-

based classifications. See City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 440 (1985).

Plaintiffs argue that Policy Order 63 enacts a sex-based

classification because the Policy treats people differently based on

the nature of their genitalia and because the Policy assigns people

to a sex. But the Policy does neither. The Policy imposes one set

of requirements without regard to an individual’s genitalia. If an

individual wants to change his or her sex designation, then the

Policy merely lists the documentation requirements for doing so:

submitting an amended birth certificate and/or a physician’s letter.

The Policy does not inquire into the nature of an individual’s

genitalia. Nor does the Policy Order assign anyone to a sex: it takes

them as they are and designates the circumstances under which the

State will agree to change the sex shown on the individual’s driver’s

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license. Accordingly, we conclude that Policy Order 63 does not

impose a sex-based classification. 9

Additionally, Plaintiffs make no argument that the Policy

adversely affects one sex over the other, nor that the Policy was

adopted due to invidious discrimination. See Feeney, 442 U.S. at 273.

To the contrary, the record suggests that the Policy was adopted

and revised “to allow more latitude for people requesting” a

change to the sex listed on their driver’s license. Accordingly,

9 Plaintiffs also argue that “under the Policy, driver’s license applicants who

are not transgender can access a driver’s license that accurately reflects their

gender identity and the sex in which they are living, without regard to their

medical history or genital status” but that “transgender people cannot do the

same.” Therefore, Plaintiffs conclude, the Policy imposes a sex-based

classification.

But rather than showing that the Policy imposes a sex-based classification,

Plaintiffs instead reveal the heart of their dissatisfaction with the Policy: the

reasons Alabama accepts for changing designated sex on a driver’s license.

This dissatisfaction is ultimately just an argument about the Policy’s merits or

demerits. Indeed, this merits-based disagreement is also illustrated by the

relief that Plaintiffs seek: they want a declaration and an injunction that

Alabama must permit them to change the sex on their driver’s licenses on their

terms, too.

Moreover, to the extent that Plaintiffs seek to argue that the Policy should be

subject to heightened scrutiny because it classifies based on transgender status,

that argument fails. We have never recognized transgender persons as a

suspect class and instead have expressed “grave ‘doubt’ that transgender

persons constitute a quasi-suspect class” for purposes of the Equal Protection

Clause. Adams, 57 F.4th at 803 n.5; see also Eknes-Tucker, 80 F.4th at 1227–30

(rejecting the argument that an Alabama statute is subject to heightened

scrutiny because it classifies on the basis of transgender status).

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20 Opinion of the Court 21-10486

because we conclude that the Policy is gender-neutral and not a

product of invidious discrimination, heightened scrutiny does not

apply. See Eknes-Tucker, 80 F.4th at 1227–30.

ii. The Policy Order survives rational basis

review.

Because we conclude that Policy Order 63 does not impose

a sex-based classification, we review the Policy under rational basis

review. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“[U]nless a

classification warrants some form of heightened review because it

jeopardizes exercise of a fundamental right or categorizes on the

basis of an inherently suspect characteristic, the Equal Protection

Clause requires only that the classification rationally further a

legitimate state interest.”). “Under this deferential standard, the

question that we ask is simply whether the challenged legislation is

rationally related to a legitimate state interest.” Eknes-Tucker, 80

F.4th at 1224–25 (quotations omitted); see also City of Cleburne, 473

U.S. at 446. At bottom,

the Equal Protection Clause is satisfied so long as

there is a plausible policy reason for the classification,

the legislative facts on which the classification is

apparently based rationally may have been considered

to be true by the governmental decisionmaker, and

the relationship of the classification to its goal is not

so attenuated as to render the distinction arbitrary or

irrational.

Nordlinger, 505 U.S. at 11 (internal citations omitted). “Such a

relationship may merely ‘be based on rational speculation’ and

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21-10486 Opinion of the Court 21

need not be supported ‘by evidence or empirical data.’” Eknes-

Tucker, 80 F.4th at 1225 (quoting F.C.C. v. Beach Commc’ns, Inc., 508

U.S. 307, 315 (1993)); see also Jones v. Governor of Fla. (“Jones I”), 950

F.3d 795, 809 (11th Cir. 2020) (explaining that under the rational

basis standard, “a legislative choice is not subject to courtroom

factfinding and may be based on rational speculation unsupported

by evidence or empirical data” (quotations omitted)). Thus, “[t]he

general rule is that legislation is presumed to be valid and will be

sustained if the classification drawn by the statute is rationally

related to a legitimate state interest.” City of Cleburne, 473 U.S. at

440.

Alabama asserts that Policy Order 63 serves the State’s

interest in ensuring consistency with the State’s existing

requirements for amending a birth certificate. 10 It does so,

10 Alabama also asserts that Policy Order 63 serves the State’s interest in

providing an accurate description of the bearer of an Alabama driver’s license

to make it easier for law enforcement officers to identify people when

determining appropriate post-arrest search and placement procedures. But,

applying intermediate scrutiny, the district court found that Alabama did not

consider this purpose when developing Policy Order 63 and refused to

evaluate whether the Policy Order adequately advanced it. Because we

conclude that the Policy is rationally related to Alabama’s first asserted

interest, it is not necessary for us to go further and review the district court’s

finding on this second asserted interest. We note, however, that the first step

of rational basis review typically involves “identifying a legitimate

government purpose . . . which the enacting government body could have been

pursuing. The actual motivations of the enacting governmental body are

entirely irrelevant.” United States v. Ferreira, 275 F.3d 1020, 1025 (11th Cir.

2001) (quotation omitted).

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22 Opinion of the Court 21-10486

Alabama explains, by facilitating the ability to “us[e] identity

documents to provide physical descriptions of individuals and . . .

provid[e] a uniform understanding of ‘sex’ on a driver[’s] license for

law enforcement.” Thus, in “objectively defining sex” for purposes

of driver’s license designations, Alabama submits that Policy Order

63 rationally achieves the State’s goal by “consistently defining sex”

across government documents. 11 In response, Plaintiffs assert that

Alabama has offered “no evidence that the Policy serves an

important government interest.”

We agree with Alabama. Modeling a policy after a

preexisting statute is rationally related to accomplishing Alabama’s

goal of developing and maintaining a uniform legal scheme and

consistent policies and procedures. Cf. Gore v. Lee, 107 F.4th 548,

561 (6th Cir. 2024) (“Maintaining a consistent definition [of sex] . .

. is a legitimate state interest.” (internal citation omitted)). Indeed,

creating an internally consistent body of law makes sense in this

context, where identity documents are at issue and often those

documents reference each other. For example, when someone

applies for a driver’s license for the first time, Alabama requires,

among other things, two forms of identification—with a birth

certificate being an acceptable form of identification.

11 Applying intermediate scrutiny, the district court concluded that the State’s

interest in uniform procedures was not a sufficiently important justification

for a state policy based on sex. But, as we have explained above, we review

Policy Order 63 under a rational basis standard—not heightened scrutiny—

meaning the district court’s conclusion and reasoning have no application

under this more deferential standard of review.

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21-10486 Opinion of the Court 23

Accordingly, we conclude that a policy that permits one’s

sex designation on a driver’s license to be changed because the

person’s birth certificate has changed or because the person has

undergone sex-reassignment surgery is a “rational line” to draw.

Jones v. Governor of Fla. (“Jones II”), 975 F.3d 1016, 1035 (11th Cir.

2020) (en banc) (quotation omitted); see id. (explaining that a state

is not required “to draw the perfect line [or] even to draw a line

superior to some other line it might have drawn” because the

Constitution requires “only a ‘rational line’” (quoting Armour v. City

of Indianapolis, 566 U.S. 673, 685 (2012))); see also Nordlinger, 505 U.S.

at 11 (requiring only a “plausible policy reason” under rational basis

review).

Plaintiffs respond that Policy Order 63 fails to withstand

rational basis review because, “[r]ather than assist with

identification, the Policy hinders it,” and “[r]ather than assist with

promoting safety, [the Policy] endangers transgender people and

protects no one.” For example, Plaintiffs argue that “identifying a

person’s sex based on their genitals—a characteristic that is rarely

visible or known to others—instead of the sex they identify as . . .

undermines accurate identification.” Conversely, Plaintiffs reason,

“[a] female sex designation on their license[s] would [in fact] make

it easier for the Plaintiffs to be correctly identified as the holders of

their licenses,” because Plaintiffs “have traditionally feminine

features” and are “consistently perceive[d]” as female.

But Plaintiffs’ arguments are all aimed at Alabama’s policy

choices. Under our “extremely narrow” review, we simply look to

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24 Opinion of the Court 21-10486

see whether the State’s interest is rationally related to its Policy.

Jones II, 975 F.3d at 1034. Using this “deferential standard,” we

conclude that it is, and so we decline to second-guess Alabama’s

choice to use “genitals” rather than “perception” as the touchstone

for its Policy.12 Id. at 1035; see also id. at 1034 (“We must uphold

the classification unless [the plaintiffs] negat[e] every conceivable

basis which might support it.” (quotation omitted)). We are not

here to second-guess the State’s line-drawing, evaluate the efficacy

of the State’s Policy, or rewrite the Policy based on our own sense

of fairness. See City of Cleburne, 473 U.S. at 440 (“When social or

economic legislation is at issue, the Equal Protection Clause allows

the States wide latitude, and the Constitution presumes that even

improvident decisions will eventually be rectified by the

democratic processes.” (internal citation omitted)); see also Jones II,

975 F.3d at 1036 (explaining that “the State need not strike at all

evils at the same time or in the same way, and a statute is not

invalid under the Constitution because it might have gone farther

than it did” (quotations and internal citations omitted) (alteration

12 As Alabama points out in its brief, grounding a sex designation in

perceptions and “feminine”- or “masculine”-type appearances presents a host

of issues, including relying on sex-stereotyping and the absence of a limiting

principle. See Reply Brief at 18 (“To take just one example, if a man dresses in

a ‘traditionally masculine’ fashion during daytime but dresses in ‘traditionally

feminine’ styles in the evening, Plaintiffs’ approach would require that

Alabama issue two driver’s licenses. And if an individual’s gender identity

vacillates throughout the day or is neither male nor female, then what, under

the Plaintiffs’ theory, could stop the Constitution from compelling on-demand

licenses with new genders to suit every identity?” (footnote omitted)).

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21-10486 Opinion of the Court 25

adopted)). We leave those tasks to the political branches and hold

that Policy Order 63 satisfies the “low bar” of rational basis review.

Jones II, 975 F.3d at 1034 (explaining that “the Supreme Court

hardly ever strikes down a policy as illegitimate under rational basis

scrutiny”).

B. Due Process Claims

Next, Plaintiffs bring claims under the Fourteenth

Amendment’s Due Process Clause, arguing that Policy Order 63

violates (1) their right to informational privacy and (2) their right

to refuse medical care. Our precedent forecloses Plaintiffs’ first

claim, and their second claim also lacks merit. We address each in

turn.

The Due Process Clause prohibits “any state” from

“depriv[ing] any person of life, liberty, or property, without due

process of law . . . .” U.S. Const. amend. XIV, § 1. First, Plaintiffs

argue that Policy Order 63 violates their right to informational

privacy because it forces Plaintiffs “to disclose their transgender

status and assigned sex at birth every time they display their

driver’s license.” In other words, “[b]y forcing Plaintiffs to disclose

private, intimate information about their transgender status,

surgical status, and genitalia, [Plaintiffs argue that] the State

violates [their] right to informational privacy.” Plaintiffs ground

the existence of this right in Whalen v. Roe, 429 U.S. 589, 599 (1977),

which acknowledged an “individual interest in avoiding disclosure

of personal matters.”

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26 Opinion of the Court 21-10486

Taking our cue from Whalen, we have also recognized an

individual’s interest in avoiding disclosure of personal matters. See,

e.g., James v. City of Douglas, 941 F.2d 1539, 1543–44 (11th Cir. 1991)

(recognizing an individual’s privacy interest in avoiding disclosure

of personal matters, including a sex tape); Plante v. Gonzalez, 575

F.2d 1119, 1133–34 (5th Cir. 1978) (using a balancing test to weigh

the privacy interest of state candidates for public office in their

financial records).13 But critically, we have held that there is no

right to informational privacy for information contained in motor

vehicle records.

In Collier v. Dickinson, we concluded that a state did not

violate the plaintiffs’ constitutional privacy rights when the

Department of Highway Safety and Motor Vehicles sold the

plaintiffs’ personal information provided to the Department to

obtain driver’s licenses and vehicle registrations. 477 F.3d 1306,

1308 (11th Cir. 2007). We explained that we were bound by a

previous panel opinion, Pryor v. Reno, 171 F.3d 1281, 1288 n.10 (11th

Cir. 1999), rev’d on other grounds, 528 U.S. 1111 (2000). Collier, 477

F.3d at 1308. Pryor, in turn, explained that we have “acknowledged

a constitutional right to privacy . . . for intimate personal

information given to a state official in confidence” but that the

“information contained in motor vehicle records is not this sort of

information.” Pryor, 171 F.3d at 1288 n.10 (emphasis omitted). As

13 Decisions of the Fifth Circuit handed down by the close of business on

September 30, 1981, are binding precedent in our Circuit. See Bonner v. City of

Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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21-10486 Opinion of the Court 27

such, “an individual does not have a reasonable expectation that

the information [contained on one’s driver’s license] is confidential.

Thus, there is no constitutional right to privacy in motor vehicle

record information which the [statute at issue] enforces.” Id.

We are similarly bound by the prior panel precedent rule,

and our prior precedents foreclose Plaintiffs’ informational privacy

claim. See Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir.

2003) (“A prior panel decision of this Court is binding on

subsequent panels and can be overturned only by the Court sitting

en banc.”). Like the plaintiffs in Collier and Pryor, the information

in which Plaintiffs seek to assert a constitutional privacy interest is

the information displayed on their driver’s licenses—specifically,

their sex designation. Because “there is no constitutional right to

privacy in motor vehicle record information” and Plaintiffs have no

“reasonable expectation that . . . information [like one’s sex

designation] is confidential,” Plaintiffs’ due process claim based on

a right to informational privacy fails. Pryor, 171 F.3d at 1288 n.10.

Second, we turn to Plaintiffs’ claim that Policy Order 63

violates their right to refuse medical treatment. The Supreme

Court has recognized that “a competent person has a

constitutionally protected liberty interest in refusing unwanted

medical treatment.” Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S.

261, 278 (1990). And Plaintiffs argue that this right is heightened

“when the treatment involves procreation or sterilization.”

Plaintiffs contend that Alabama violated their right to refuse

medical treatment by “forc[ing them] to undergo surgery as a

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28 Opinion of the Court 21-10486

condition of receiving a driver’s license” and that Alabama is

conditioning access to a government benefit on giving up their

constitutional right to refuse unwanted medical treatment. But

both of these arguments miss the mark.

As an initial matter, Policy Order 63 does not force or

require Plaintiffs to undergo surgery as a condition of receiving a

driver’s license. Rather, the Policy merely sets forth

documentation requirements for individuals who wish “to have the

sex changed on their Alabama driver[’s] license due to gender

reassignment surgery.” Access to an Alabama driver’s license is not

dependent on any surgical procedure. Indeed, all Plaintiffs

currently have Alabama driver’s licenses, and none of them were

required to undergo any unwanted medical treatment to obtain

them.

Nonetheless, Plaintiffs contend that Alabama is conditioning

access to a government benefit on giving up their constitutional

right to refuse unwanted medical treatment. Plaintiffs define the

government benefit at issue not as a driver’s license generally, but

as a “license that lists their sex as female,” arguing that “a license

that lists their sex as female—that is, a license they can actually use

without sacrificing being their ‘true self ’” or subjecting themselves

to harassment, assault, or violence—is “undoubtedly a valuable

government benefit.” But Plaintiffs cite no authority for the

proposition that an Alabama driver’s license is meant to confer such

a benefit. Thus, Plaintiffs fail to make any argument—and thus fail

to carry their burden—to show that a license that conforms with

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21-10486 Opinion of the Court 29

their preferred sex identifier is a government benefit—except for

declaring that it “undoubtedly” is. See, e.g., Barnes v. Zaccari, 669

F.3d 1295, 1303 (11th Cir. 2012) (explaining that states can create

substantive interests in government benefits by grounding an

entitlement in a state law, a regulation, an express or implied

contract, or a mutually explicit understanding). Without a

government benefit to point to, Plaintiffs’ argument fails from the

start.

Accordingly, because Policy Order 63 does not force

Plaintiffs to undergo medical treatment, and because Plaintiffs have

not shown that licenses that conform with their preferred sex

identifier is a government benefit to begin with, Plaintiffs’

constitutionally protected liberty interest in “refusing unwanted

medical treatment” has not been infringed. See Cruzan, 497 U.S. at

278. Plaintiffs’ due process claims fail.

C. First Amendment Claim

Finally, Plaintiffs argue that Policy Order 63 violates their

free speech rights by compelling them to communicate the State’s

message about their biological sex and by forcing them to disclose

their transgender status. Alabama, on the other hand, argues that

any speech at issue is government speech—not compelled

speech—and to the extent it implicates Plaintiffs’ First Amendment

rights, such infringement is incidental to the broader regulation

requiring drivers to carry licenses. We agree with Alabama.

To start, any speech on an Alabama driver’s license,

including the sex designation, is government speech. And Plaintiffs

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30 Opinion of the Court 21-10486

agree. Driver’s licenses are “often closely identified in the public

mind with the [State].” Walker v. Tex. Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200, 212 (2015) (quoting Pleasant Grove City v.

Summum, 555 U.S. 460, 472 (2009) (alteration in original)). Indeed,

a driver’s license is a form of government identification, and, here,

Alabama is the issuer and “maintains direct control” over the

requirements for and contents of a driver’s license. See id. at 213;

see Ala. Code § 32-6-6 (2009). “Consequently, persons who observe

. . . [licenses] routinely—and reasonably—interpret them as

conveying some message on the issuer’s behalf,” rather than

conveying a message by the license holder. Walker, 576 U.S. at 212

(quotations omitted and alteration adopted) (emphasis added).

Nothing about the sex designation on a driver’s license suggests

that it is Plaintiffs’ speech or restricts what Plaintiffs may say about

their sex or sex designation. Cf. Rumsfeld v. F. for Acad. & Institutional

Rts., Inc., 547 U.S. 47, 65 (2006) (explaining that a statute that denied

federal funding to institutions of higher education that did not

permit military recruiters on campus did not impermissibly

regulate speech where “[n]othing about recruiting suggests that

[the schools] agree with any speech by recruiters, and nothing in

the [statute] restrict[ed] what the [schools] may say about the

military’s policies”). And the fact that Plaintiffs may take part in

providing some physical identification information for inclusion on

their licenses does not extinguish the governmental nature of State-

issued identification. Walker, 576 U.S. at 217 (explaining that a

private party’s provision of information “does not extinguish the

governmental nature of the message”).

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21-10486 Opinion of the Court 31

Our conclusion that the content of an Alabama driver’s

license is government speech is crucial because “[t]he Free Speech

Clause restricts government regulation of private speech; it does

not regulate government speech.” Pleasant Grove City, 555 U.S. at

467–68; see also Walker, 576 U.S. at 207 (“When government speaks,

it is not barred by the Free Speech Clause from determining the

content of what it says.”). And because “[a] government entity has

the right to speak for itself[,] [i]t is entitled to say what it wishes”

and is free “to select the views that it wants to express.” Pleasant

Grove City, 555 U.S. at 467–68 (quotations omitted); cf. Gore, 107

F.4th at 557 (A state “may decide how to use the word ‘sex’ in

government documents, and it may decide . . . ‘to say what it

wishes’ in its records” (quoting Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 833 (1995)).

Next, we reject Plaintiffs’ argument that the Policy “compels

Plaintiffs to communicate the State’s message that their sex is male

. . . [and] forces them to disclose their transgender status.” They

contend that “[t]he express purpose of a driver’s license is for the

holder to convey information about the holder to someone else,”

meaning that “[a] reasonable person would think that someone

who presented a driver’s license was expressing that the license was

theirs and the information it contained about them was accurate.”

It is true that the “government’s ability to express itself is [not]

without restriction.” Walker, 576 U.S. at 208. The First

Amendment may “constrain government speech if, for example,

the government seeks to compel private persons to convey the

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32 Opinion of the Court 21-10486

government’s speech.” Id. But we disagree that the Policy

somehow amounts to compelled speech.

Contrary to Plaintiffs’ arguments, Policy Order 63 simply

does not compel Plaintiffs “to communicate the State’s message

that their sex is male” and does not “force them to disclose their

transgender status.” If anything, the Policy helps to do the

opposite by providing an avenue for “individual[s] wishing to have

the[ir] sex changed on their Alabama driver[’s] license.” Without

the Policy, there would be no such avenue. Either way, Plaintiffs

fail to show how the Policy—which simply spells out the way in

which an individual may change the sex on his or her license—

compels their speech in any way.

At bottom, Plaintiffs disagree with Alabama’s method of

determining how sex is listed on a driver’s license—i.e., Alabama’s

viewpoint. But, as we explained above, when it comes to the

government’s speech, Alabama “has the right to speak for itself,”

“is entitled to say what it wishes,” and is free “to select the views

that it wants to express.” Pleasant Grove City, 555 U.S. at 467–68

(quotations omitted). “That freedom in part reflects the fact that

it is the democratic electoral process that first and foremost

provides a check on government speech.” Walker, 576 U.S. at 207;

see also id. at 208 (“It is not easy to imagine how government could

function if it lacked the freedom to select the messages it wishes to

convey.” (quotation omitted and alterations adopted)). Moreover,

Plaintiffs correctly concede “private parties may not” “compel the

government to convey their own message”—meaning that

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21-10486 Opinion of the Court 33

Plaintiffs cannot force Alabama to convey their message about sex

either. See id. at 218; see also id. at 212 (“[I]ssuers of IDs typically do

not permit the placement on their IDs of message[s] with which

they do not wish to be associated.” (quotations omitted)).

Accordingly, considering that the sex designation on Alabama

driver’s licenses is government speech and that Policy Order 63

does not compel Plaintiffs’ speech, Plaintiffs’ First Amendment

claim fails.

IV. CONCLUSION

Plaintiffs seek to change the Policy by which Alabama

permits an individual to change the sex on his or her driver’s

license. But neither the Equal Protection Clause, nor the Due

Process Clause, nor the First Amendment gives us any right to

order Alabama to do so. Thus, because Policy Order 63 withstands

Plaintiffs’ constitutional challenges, we reverse the district court’s

order declaring Policy Order 63 unconstitutional and enjoining its

enforcement.

REVERSED.

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21-10486 Jill Pryor, J., concurring in judgment 1

JILL PRYOR, Circuit Judge, concurring in judgment:

Plaintiffs Darcy Corbitt, Destiny Clark, and Jane Doe are

transgender women living in Alabama. Each woman sought an

Alabama driver’s license with a sex designation identifying her as

female. The Alabama Law Enforcement Agency’s Policy Order 63

establishes the procedure for changing the sex designation on an

Alabama driver’s license. To change the sex on a driver’s license,

Policy Order 63 requires the driver to submit one of two

documents: a birth certificate bearing an amended sex designation

or a letter from a physician showing that the driver underwent

gender reassignment surgery. None of the three women had a

modified birth certificate—because the policy for changing the sex

on a birth certificate is similar—so the women were required to

submit a physician’s letter. When Alabama refused to change the

sex designations on their licenses based on the documentation they

presented, they sued, challenging as unconstitutional the State’s

application of Policy Order 63. The district court agreed with the

plaintiffs that the policy order’s application violated the Equal

Protection Clause of the Constitution’s Fourteenth Amendment

and enjoined Alabama from enforcing it against them.

The majority opinion reverses the district court. It holds that

the district court erred in concluding that Policy Order 63

discriminates based on sex and thus the court must apply an

intermediate level of scrutiny when reviewing its constitutionality.

Because the policy order does not discriminate based on sex, the

majority opinion holds, the district court was limited to making

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2 Jill Pryor, J., concurring in judgment 21-10486

sure the policy order had a rational basis. Under rational basis

review, if federal judges reviewing the policy can come up with a

reason, any reason, why the State’s adoption of the policy might

not be completely irrational, the policy order must be upheld. Not

surprisingly, then, Policy Order 63 survives rational basis review.

I do not blame the majority for this result. As I discuss

below, this Court’s binding precedent requires it. I merely observe

that this case is the latest in a series of cases from this Court

rejecting equal protection claims by transgender individuals

challenging government policies that prohibit them from living

their lives consistently with their gender identity. See Adams ex rel.

Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 802–11 (11th Cir.

2022); Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1227 (11th Cir.

2023), reh’g denied, 2024 WL 3964753 (11th Cir. Aug. 28, 2024); see

also Doe v. Surgeon Gen., No. 24-11996 (11th Cir. Aug. 26, 2024)

(allowing a law to take effect that prohibits the prescription of

puberty blockers and hormones to transgender minors and restricts

the prescription of puberty blockers and hormones to transgender

adults after a district court had enjoined enforcement of the law).

Some of my colleagues and I have expressed grave concerns with

these decisions. See Adams, 57 F.4th at 821 (Wilson, J., dissenting);

id. at 824 (Jordan, J., dissenting); id. at 830 (Rosenbaum, J.,

dissenting); id. at 832 (Jill Pryor, J., dissenting); Eknes-Tucker, 2024

WL 3964753, at *29 (Wilson, J., dissenting from denial of rehearing

en banc); Eknes-Tucker, 2024 WL 3964753, at *42 (Rosenbaum, J.,

dissenting from denial of rehearing en banc); Doe, slip op. at 1

(Wilson, J., dissenting).

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21-10486 Jill Pryor, J., concurring in judgment 3

I am sympathetic to the plaintiffs’ plight and concerned

about this Court’s equal protection decisions involving transgender

individuals. But the decision in Eknes-Tucker, which we declined to

rehear en banc, compels me to agree with the majority that we

must apply rational basis review to the plaintiffs’ challenge to the

policy order. Because the policy order survives rational basis

review, I concur in the judgment of the majority.

I.

Corbitt, Clark, and Doe, 1 transgender Alabamians, have

consistently and persistently identified as a gender different from

the sex they were assigned at birth. They spent their childhoods

and adolescences feeling a persistent distressing disconnect

between the sex they were assigned at birth (male) and the gender

with which they identified (female).

In adulthood, each was diagnosed with gender dysphoria.

Gender dysphoria is an accepted medical diagnosis with defined

criteria. See Am. Psychiatric Ass’n, Diagnostic & Statistical Manual

of Mental Disorders (DSM-5 TR) (5th ed. text rev. 2022) (setting

forth diagnostic criteria). Left untreated, gender dysphoria is

associated with self-harm, anxiety, depression, and rates of

suicidality ranging from 30 to 80 percent. Id. at 518. But appropriate

treatment markedly improves these outcomes. Some forms of

1 Consistent with our case law recognizing that transgender parties may face

severe “social stigma,” the district court permitted Doe to proceed under a

pseudonym. Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992).

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4 Jill Pryor, J., concurring in judgment 21-10486

treatment include social transitioning, hormone replacement

therapy, and gender-affirming surgery.

As part of the treatment for her gender dysphoria, each

plaintiff undertook social transitioning to match her outward

presentation of gender with her gender identity. Each began to

interact with society as a woman by choosing a new name; using

the pronouns “she,” “her,” and “hers”; and wearing different

clothing. The plaintiffs found the transition empowering. As

Corbitt explained, transitioning allowed her to “feel somewhat

normal for the first time in [her] life.” Doc. 52-29 at 16. 2

As part of their transitions, the plaintiffs sought to change

the sex designations on their official documents. They successfully

changed the sex designations on their passports or social security

records to female to reflect their identity as women.

The trouble started when each woman went to a local

driver’s license office to obtain an Alabama driver’s license with a

female sex designation. Each plaintiff felt it was important to

change the sex designation on her driver’s license to affirm who she

was and live authentically. 3

2 “Doc.” numbers refer to the district court’s docket entries.

3 Evidence in the record confirms the benefits of having identification

documents that are consistent with a person’s gender identity. According to a

recent study, having an identification document with a sex designation

corresponding to a transgender person’s gender identity “was associated with

a large reduction in suicidal ideation and attempts.” Doc. 52-45 at ¶ 27. For

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21-10486 Jill Pryor, J., concurring in judgment 5

The plaintiffs also understood that carrying a driver’s license

with a sex designation that matched their gender identity was

important for their safety. Carrying a driver’s license with a male

sex designation meant that whenever they showed their licenses,

they were effectively disclosing that they were transgender and

putting themselves at risk of abuse and violence. Both Corbitt and

Clark received death threats in the past for being transgender. And

while working as a firefighter, Doe was targeted for abuse and

violence by her coworkers because of her gender identity. During

a training activity, they barricaded her in a burning room so hot

that it melted her protective gear and burned her body, leaving

second- and third-degree burns. As she burned, her colleagues

called her a “freak” and told her she was not welcome in the fire

department. Doc. 56-12 at ¶ 11.

The plaintiffs also knew that disclosing their transgender

status by showing a driver’s license that did not match their gender

identity could put them at risk of other types of harm or ridicule.

Doe lost a job after showing her driver’s license with a male sex

designation to a person who then informed her employer that she

was transgender. Another time, she showed her license with a male

sex designation at a bank. Upon realizing that Doe was

transgender, the teller became visibly upset, told her that she was

going to hell, and refused to serve her.

every 100 transgender people who succeeded in changing an identification

document, two suicide attempts were averted, the study found.

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6 Jill Pryor, J., concurring in judgment 21-10486

Corbitt actually experienced ridicule and fear for her

physical safety at the driver’s license office where she went to

obtain a license with a female sex designation. The examiner who

assisted her was initially friendly and chatty—until she saw that

Corbitt previously had an Alabama driver’s license with a male sex

designation and realized that Corbitt was transgender. The

examiner then began loudly referring to Corbitt as a “man” and

“it,” treating her like “an object.” Doc. 52-29 at 25–26. Corbitt

witnessed other people present looking at her “with disgust.” Id. at

26. She fled the office, fearing that she would be beaten up.

All three plaintiffs were unsuccessful in changing the sex

designation on their Alabama driver’s licenses. In reviewing the

women’s requests, Alabama Law Enforcement Agency (“ALEA”)

officials applied Policy Order 63, which permits a change to the sex

designation on a driver’s license only if a person submits either an

“amended state certified birth certificate” or a letter from a

physician who performed “gender reassignment surgery” on the

person. Doc. 1-1 at 2. Although the policy order does not define

“gender reassignment surgery,” ALEA officials require the person

to undergo both “top” and “bottom” surgery. 4 Doc. 48-4 at 16, 19–

4 Worth noting is the fact that there are “dozens of possible [surgical]

procedures that transgender people can undergo, and no single patient

undergoes all of the ones possible for their gender.” Doc. 52-45 at ¶ 36. To

name only some, as part of their medical treatment for gender dysphoria

transgender people may undergo the following procedures: zero-depth

vaginoplasty, phalloplasty, metoidioplasty, mastectomy, chest reconstruction,

hysterectomy, testosterone subcutaneous implants, and contra laryngoplasty.

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20. In effect, ALEA ties a transgender person’s ability to obtain a

driver’s license that matches her gender identity to the person’s

ability to afford costly gender-affirming surgery, which may not be

covered by insurance, 5 and willingness to undergo this type of

invasive surgery that often results in infertility.

Applying Policy Order 63, ALEA officials refused to change

the sex designations on the plaintiffs’ driver’s licenses. None of the

women had undergone the required surgery. Corbitt had not had

gender-affirming surgery because she did not believe that it was

right for her. Although Clark had breast augmentation surgery,

ALEA officials refused to change her license, telling her that she

needed to have “the full surgery.” Doc. 52-36 at 31. And Doe had

not undergone gender-affirming surgery because she could not

afford it.

After being refused licenses with female sex designations,

the three plaintiffs sued various Alabama officials responsible for

implementing Policy Order 63. See 42 U.S.C. § 1983. Among other

claims, they alleged that the policy order violated the Equal

Protection Clause of the Fourteenth Amendment because it

discriminated based on sex and transgender status and served no

legitimate government interest.

Despite the myriad types of available surgeries, ALEA does not maintain a list

of procedures that satisfy the policy order.

5 See Lange v. Hous. Cnty., 101 F.4th 793 (11th Cir.), vacated en banc, 110 F.4th

1245 (11th Cir. 2024). It also appears that Alabama’s Medicaid program does

not cover any gender-affirming health services for transgender individuals.

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8 Jill Pryor, J., concurring in judgment 21-10486

The district court concluded that Policy Order 63 violated

the Equal Protection Clause. The court reasoned that the policy

“classifie[d] by sex” by “making the content of . . . [Alabama] driver

licenses depend on . . . genitalia.” Doc. 101 at 3. The district court

then applied the legal test used to review sex-based classifications—

known as intermediate scrutiny. To survive intermediate scrutiny,

the court correctly explained, Alabama had to “show that its

decision to classify based on sex serves important governmental

objectives and that the particular policy it employs is substantially

related to the achievement of those objectives.” Id. at 15 (internal

quotation marks omitted).

In applying intermediate scrutiny, the district court

considered the one interest that ALEA advanced when it adopted

the policy order: the need for “uniformity between birth certificate

and driver license amendment standards.” Id. at 18. The court

determined that this interest did not qualify as important under the

intermediate-scrutiny standard because the only drawback

Alabama could identify in a situation where an Alabama driver’s

license bore a different sex from an Alabama birth certificate was

“the need to gather some additional documentation” when issuing

a new license. Id. at 21. Then, based on factual findings about the

lack of standards for sex-designation changes on Alabama birth

certificates and driver’s licenses, as well as the inconsistency with

which state officials implemented Policy Order 63’s change-of-sex

requirement, the district court found that the policy did not

substantially advance the interest in uniformity.

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The district court declared Policy Order 63’s surgical

requirement unconstitutional as applied to Corbitt, Clark, and

Doe, and it enjoined the defendant officials from “failing to issue”

the three women “driver licenses with female sex designations,

upon application for such licenses.” Doc. 102 at 2. Alabama

appealed.

II.

The Equal Protection Clause of the Fourteenth Amendment

provides that “No state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1. Under modern equal protection jurisprudence, we subject

laws to different degrees (or tiers) of scrutiny, depending on their

operation. We reserve strict scrutiny—“the most demanding test

known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507,

534 (1997) 6—for laws that classify based on race, national origin, or

(sometimes) alienage.7 And we apply intermediate scrutiny to laws

that classify based on sex. See United States v. Virginia, 518 U.S. 515,

531–33 (1996). But most laws are subject only to rational basis

review, the least probing form of equal protection review. See City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439–40 (1985).

6 City of Boerne was superseded by statute on other grounds. See Ramirez v.

Collier, 595 U.S. 411, 424 (2022).

7 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (race); Graham

v. Richardson, 403 U.S. 365, 371–72 (1971) (alienage); Oyama v. California,

332 U.S. 633, 644–47 (1948) (national origin). But see Plyler v. Doe, 457 U.S. 202,

223–24 (1982) (alienage).

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10 Jill Pryor, J., concurring in judgment 21-10486

The majority opinion holds that the district court erred in

applying intermediate scrutiny to the plaintiffs’ equal protection

claim because Policy Order 63 is subject to rational basis review

only. I agree that precedent compels this conclusion.

As the majority opinion explains, this Court recently held

that an Alabama law criminalizing gender-affirming care for

transgender minors did not “amount[] to a sex-based classification

subject to intermediate scrutiny.” Eknes-Tucker, 80 F.4th at 1227.

Eknes-Tucker held that the law did “not establish an unequal regime

for males and females” because it established “a rule that applie[d]

equally to both sexes”—minors of neither sex may undergo

treatment for gender dysphoria. Id. at 1228. Although Alabama’s

law classified minors according to the state’s definition of sex to

determine whether providing a particular treatment is a crime,

Eknes-Tucker concluded that neither the fact that the statute’s

application logically depends on sex nor the fact that sex is its

subject matter made it a sex-based classification. Id. at 1227–28. And

it held that the statute did not, by burdening exclusively

transgender individuals, unlawfully classify based on transgender

status. Id. at 1229–30. Thus, Eknes-Tucker reviewed Alabama’s law

under rational basis review. Id. at 1230.

I agree with the majority opinion that Eknes-Tucker bars us

from applying intermediate scrutiny to Policy Order 63. Like the

law challenged in Eknes-Tucker, the policy order prescribes a rule

that is equally applicable to both transgender men and transgender

women: no individual can amend the sex designation on an existing

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Alabama driver’s license without undergoing genital-altering

surgery. See id. at 1228. And although the subject matter of the

policy order is sex (as the majority opinion concedes), Eknes-Tucker

also rejected the argument that the fact that a law’s subject matter

is sex makes it a sex-based classification. See id. The argument that

the policy order is subject to intermediate scrutiny because it

touches on a critical aspect of gender-affirming care undertaken

solely by transgender people meets the same fate. See id. at 1229–

30 (“[R]egulation of a course of treatment that only gender

nonconforming individuals can undergo would not trigger

heightened scrutiny unless the regulation were a pretext for

invidious discrimination.”).

To be clear, I disagree with Eknes-Tucker. If I were writing

on a blank slate, I would conclude that Policy Order 63 must be

reviewed under intermediate scrutiny because it classifies based on

sex and because transgender status is itself a quasi-suspect

classification for purposes of equal protection analysis. I would

reach these conclusions for the reasons Judge Rosenbaum

explained in her thorough and thoughtful opinion dissenting from

the denial of rehearing in Eknes-Tucker. See 2024 WL 3964753, at

*60–67 (Rosenbaum, J., dissenting from denial of rehearing en

banc).

But we are not writing on a blank slate. Eknes-Tucker is

binding precedent that forecloses the application of intermediate

scrutiny. See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir.

2001) (“Under the well-established prior panel precedent rule of

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12 Jill Pryor, J., concurring in judgment 21-10486

this Circuit, the holding of the first panel to address an issue is the

law of this Circuit, thereby binding all subsequent panels unless and

until the first panel’s holding is overruled by the Court sitting en

banc or by the Supreme Court.”).

Under Eknes-Tucker, we must apply rational basis review to

the plaintiffs’ equal protection challenge to Policy Order 63. Under

rational basis review, we ask “whether the challenged legislation is

rationally related to a legitimate state interest.” Eknes-Tucker,

80 F.4th at 1224–25. We must presume Policy Order 63’s

classification is valid, and the plaintiffs “have the burden ‘to

negative every conceivable basis which might support it.’” F.C.C. v.

Beach Commc’ns, Inc., 508 U.S. 307, 314–15 (1993) (quoting

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

Put another way, a classification “is constitutional under rational

basis scrutiny so long as ‘there is any reasonably conceivable state

of facts that could provide a rational basis’” for the policy. Williams

v. Morgan, 478 F.3d 1316, 1320 (11th Cir. 2007) (quoting Beach

Commc’ns, 508 U.S. at 313). A challenged policy fails under rational

basis review only when the “varying treatment of different groups

or persons is so unrelated to the achievement of any combination

of legitimate purposes that we can only conclude that the

legislature’s actions were irrational.” Vance v. Bradley, 440 U.S. 93,

97 (1979).

Despite my serious concerns about the wisdom of

Alabama’s policy judgment, I am compelled by precedent to agree

with the majority opinion that Policy Order 63 survives rational

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basis review. See Williams, 478 F.3d at 1324 (recognizing that even

a “bad” or “foolish” policy may survive rational basis review).

III.

In closing, I understand the profound impact that today’s

decision will have on the lives of Corbitt, Clark, Doe, and other

transgender people in Alabama. The decision means that Alabama

can deny transgender people access to driver’s licenses with sex

designations that match their gender identity if they have not

undergone the expensive and invasive gender reassignment

surgeries that Policy Order 63 requires. I understand that without

the ability to change the sex designations on their licenses,

transgender Alabamians will likely suffer abuse and even violence

when their licenses reveal, in everyday transactions, that they are

transgender. Because our precedent compels the conclusion that

classifications targeting transgender individuals are subject to

rational basis review, not intermediate scrutiny, however, I

reluctantly and with grave misgivings concur in the majority

opinion’s judgment.