USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 144 of 150
Here again, Bostock’s reasoning, separate from any Title VII-specific language, demonstrates that “sex” was a but-for cause of the discrimination Adams experienced. Recall that in Bostock the Supreme Court reasoned that when an employer fired an employee for being transgender, the discrimination was due to at least two factors, the individual’s “sex” and “something else.” Id. at 1742.[1] The same reasoning applies here: Adams was excluded from the boys’ bathroom under the policy either because he had one specific biological marker traditionally associated with females, genital anatomy (or, put differently, because he lacked that one specific biological marker traditionally associated with males). And so a but-for cause of Adams discriminatory exclusion from the boys’ restroom was “sex” within the meaning of Title IX. I would therefore affirm the district court’s judgment on Adam’s Title IX claim in addition to the equal protection claim.[2]
- ↑ Again, and importantly, the Court in Bostock merely assumed that “sex” did not include gender identity. Bostock, 140 S. Ct. at 1739.
- ↑ In a special concurrence, Judge Lagoa writes that permitting “sex” under Title IX to include gender identity would require that institutions allow transgender girls to participate in girls’ sports. She worries that such integration threatens to undermine the progress girls and women have made via participation in Title IX programs. See Lagoa Concurring Op. at 2. But there is no empirical data supporting the fear that transgender girls’ participation in girls’ sports in any way undermines the experience and benefits of sports to cisgender girls. The fact that there may be biological differences between transgender and cisgender girls does not mean that transgender girls will so overwhelm girls’ sports programs with competitive advantages as to
