United States Court of Appeals: in The

USCA11 Case: 21-10486 Document: 130-1 Date Filed: 09/20/2024 Page: 1 of 46
[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,
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,
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).
“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.
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
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
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).
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.”
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.”
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
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
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 . . .
6Both parties consented to this arrangement below, and neither complains

about it on appeal.
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.
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).
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:
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
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.
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
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).
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
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).
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.
11Applying 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.
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
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)).
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.”
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).
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
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
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
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”).
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
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
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.
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
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).
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
1Consistent 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).
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
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.
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.
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.
5See 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.
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.
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).
6City 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).
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
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
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
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.

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USCA11 Case: 21-10486 Document: 130-1 Date Filed: 09/20/2024 Page: 1 of 46

2 Opinion of the Court 21-10486

Appeal from the United States District Court

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

21-10486 Opinion of the Court 3

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

4 Opinion of the Court 21-10486

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

21-10486 Opinion of the Court 5

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

6 Opinion of the Court 21-10486

performed the reassignment procedure. Specifically, the Policy

The amended birth certificate option means that Alabama accepts

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

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

21-10486 Opinion of the Court 7

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

that the name of the individual has been changed, the

8 Opinion of the Court 21-10486

Plaintiffs Corbitt, Clark, and Doe are all transgender

21-10486 Opinion of the Court 9

Plaintiffs allege that they are personally harmed by

10 Opinion of the Court 21-10486

Defendant Deena Pregno, the Chief of the ALEA Driver

21-10486 Opinion of the Court 11

agreed that “correctional administrators typically take into account

12 Opinion of the Court 21-10486

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

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

21-10486 Opinion of the Court 13

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

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

14 Opinion of the Court 21-10486

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

21-10486 Opinion of the Court 15

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

16 Opinion of the Court 21-10486

It is the policy of the Chief of the Driver License

1. An amended state certiﬁed birth certiﬁcate

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

21-10486 Opinion of the Court 17

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

18 Opinion of the Court 21-10486

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

21-10486 Opinion of the Court 19

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

20 Opinion of the Court 21-10486

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

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

21-10486 Opinion of the Court 21

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

22 Opinion of the Court 21-10486

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

21-10486 Opinion of the Court 23

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

24 Opinion of the Court 21-10486

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

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

21-10486 Opinion of the Court 25