USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 143 of 150
uterus) can be female. Putting together these two concepts—that “biological sex” includes gender identity and that the markers of a person’s biological sex may diverge—despite the majority’s protestations otherwise, a person can be male if some biological components of sex, including gender identity, align with maleness, even if other biological components (for example, chromosomal structure) align with femaleness.[1]
Next, “on the basis of.” The clause “on the basis of,” appearing before the word “sex,” imposes the familiar but-for standard of causation. When interpreting statutes generally, and antidiscrimination laws specifically, “Congress is normally presumed” to have legislated a “but for” causation standard “when creating its own new causes of action.” Comcast Corp. v. Nat’l Ass. of African American-Owned Media, 140 S. Ct. 1009, 1014 (2020). The but-for causation standard means that “a particular outcome would not have happened ‘but for’ the purported cause.” Bostock, 140 S. Ct. at 1739. It is possible for the same event to have more than one but-for cause. Id. Putting these concepts together, we ask whether Adams’s discriminatory exclusion from the boys’ restroom at Nease High School under the bathroom policy would not have happened but for the biological markers of his sex.
- ↑ So, the majority is simply wrong when it asserts that my reading of Title IX would result in “dual protection … based on both sex and gender identity.” Maj. Op. at 42 (emphasis omitted). On this record, we can discern that gender identity is one of the components of a person’s sex, so protection based on gender identity is protection based on sex.
