USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 36 of 150
sexes.” 20 U.S.C. § 1686. The regulations implementing Title IX explicitly permit schools receiving federal funds to “provide separate housing on the basis of sex,” so long as the housing is “[p]roportionate in quantity to the number of students of that sex applying for such housing” and “[c]omparable in quality and cost to the student,” 34 C.F.R. § 106.32(b), and “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the facilities “provided for students of one sex [are] comparable to such facilities provided for students of the other sex,” id. § 106.33.
As such, this appeal requires us to interpret the word “sex” in the context of Title IX and its implementing regulations. We cannot, as the Supreme Court did in Bostock, decide only whether discrimination based on transgender status necessarily equates to discrimination on the basis of sex, as Adams would have us do. 140 S. Ct. at 1739 (“The question isn’t just what ‘sex’ meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions ‘because of’ sex.”). This is because Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for differentiating between the sexes when it comes to separate living and bathroom facilities, among others. Therefore, if to “provide separate toilet … facilities on the basis of sex” means to provide separate bathrooms on the basis of biological sex, then the School Board’s policy fits squarely within the carve-out. 34 C.F.R. § 106.33. And if the School Board’s policy fits within the
