USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 141 of 150
explain that a school cannot “[s]ubject any person to separate or different rules of behavior, sanctions, or other treatment” on the basis of sex. 34 C.F.R. § 106.31(b)(4). Neither can a school “[p]rovide different aid, benefits, or services or provide aid, benefits, or services in a different manner,” or “[d]eny any person such aid, benefit, or service” on the basis of sex. Id. § 106.31(b)(2), (3).
The School District’s bathroom policy bans transgender students from using the restroom that matches their gender identity. There is no doubt that this constitutes discrimination, because transgender boys are treated differently from cisgender boys and transgender girls are treated differently from cisgender girls, with only cisgender students receiving the benefit of being permitted to use the restroom matching their gender identity and transgender students being denied that benefit. White, 548 U.S. at 59; see 34 C.F.R. § 106.31(b). Being denied this benefit injures transgender students. Adams testified that the bathroom policy left him feeling anxious, depressed, ashamed, and unworthy—like “less of a person” than his peers. Doc. 160-1 at 204. And the record evidence reflects that many transgender people benefit from using bathrooms consistent with their gender identity because it alleviates the debilitating distress and anxiety of living with gender dysphoria.
The harder question is whether the discrimination is “on the basis of sex.” To begin with, we need a definition for the word “sex” in the Title IX context. Consulting contemporaneous dictionary definitions, the majority opinion concludes that the word “sex” as used in Title IX unambiguously refers to “biological sex.” Majority
