XSD doesn't support calls to XPath functions in setting facet values, so (as you presumably already know) the code in the question won't work.
The most obvious workarounds are
- Use XSD 1.1 and check the constraint in an assertion.
- Use Schematron and check the constraint in an assertion.
- Check the constraint at the application level.
Move the declaration of the birthDate type into a schema document of its own; periodically generate a new version of that schema document, either by hand or using a cron job or something similar. The schema document generated today would have
<xs:maxInclusive value="2013-06-20"/>
and the schema document generated tomorrow would have
<xs:maxInclusive value="2013-06-21"/>