USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 40 of 150
20 U.S.C. § 1686. So, if “sex” were ambiguous enough to include “gender identity,” as Adams suggests and as the district court ultimately concluded, then this carve-out, as well as the various carve-outs under the implementing regulations, would be rendered meaningless. This is because transgender persons—who are members of the female and male sexes by birth—would be able to live in both living facilities associated with their biological sex and living facilities associated with their gender identity or transgender status. If sex were ambiguous, it is difficult to fathom why the drafters of Title IX went through the trouble of providing an express carve-out for sex-separated living facilities, as part of the overall statutory scheme. For this reason alone, reading in ambiguity to the term “sex” ignores the overall statutory scheme and purpose of Title IX, along with the vast majority of dictionaries defining “sex” based on biology and reproductive function.
The district court claimed that the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), and this Court’s decision in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), provided support for its conclusion that “the meaning of ‘sex’ in Title IX includes ‘gender identity’ for purposes of its application to transgender students.” But both cases dealt with workplace discrimination involving nonconformity with sex stereotypes; neither case departed from the plain meaning of “sex,” generally, or as used within Title IX. Price Waterhouse, 490 U.S. at 250 (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive,
