USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 140 of 150
heightened scrutiny. For this reason, too, I would affirm the district court on Adams’s equal protection claim.[1]
C. Adams’s Exclusion from the Boys’ Restroom Under the Bathroom Policy Violated Title IX.
I turn now to Adams’s Title IX claim. Title IX provides: “No person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). There is no dispute that the use of school restrooms constitutes an “educational program or activity” and that the School District receives federal funding as required by Title IX. Therefore, Adams must show only that he was subjected to “discrimination” “on the basis of sex” to succeed on his Title IX claim. Id.
I begin with discrimination. Discrimination “refers to distinctions or differences in treatment that injure protected individuals.” Burlington N. Santa Fe. Ry. Co. v. White, 548 U.S. 53, 59 (2006). To determine what it means to “discriminate” under Title IX, we look to the relevant implementing regulations, which
- ↑ The majority opinion asserts that the School District is owed deference regarding how it chooses to manage the student population. That may be true in appropriate contexts, but no tenet of constitutional law provides that children “shed their constitutional rights … at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). None of the cases the majority opinion cites provides for a doctrine of deference that would excuse a violation of a student’s equal protection rights.
