USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 142 of 150
Op. at 36–38; see id. at 38, 40 (explaining that “sex” in Title IX equates to “biology and reproductive function”). I assume, for the purposes of our discussion today, that the term “sex” as used in Title IX unambiguously refers to “biological sex,” a term even the majority opinion acknowledges contains more than one biological component.[1]
As I have explained above, though, undisputed record evidence in this case demonstrates that, among other biological components, “biological sex” includes gender identity. And, of course, it would defy the record and reality to suggest that all the markers of a person’s biological sex must be present and consistent with either maleness or femaleness to determine an individual’s “biological sex.” Based on the unrebutted evidence that Adams introduced, the district court found that “‘physical aspects of maleness and femaleness’ may not be in alignment (for example, ‘a person with XY chromosomes [may] have female-appearing genitalia).” Doc. 192 at 6 (quoting Doc. 151-4 at 7); see also Wilson Dissenting Op. at 2–4. I believe the majority would agree with me that a person can be female after a hysterectomy, for example. Or that an individual with Mayer-Rokitansky-Küster-Hauser Syndrome (that is, born with XX chromosomes, ovaries, and labia but without a vagina and
- ↑ I therefore have no reason to address the majority opinion’s Spending Clause argument. The Spending Clause cannon of construction arguably comes into play only if we find ourselves dealing with an ambiguous statute. See generally Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
