USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 42 of 150
statute and its implementing regulations than it would against discrimination on the basis of sex. Title IX and its implementing regulations prohibit discrimination on the basis of sex, but they also explicitly permit differentiating between the sexes in certain instances, including school bathrooms, locker rooms, and showers, under various carve-outs. As explained in our discussion about the statutory scheme and purpose of Title IX, transgender persons fall into the preexisting classifications of sex—i.e., male and female. Thus, they are inherently protected under Title IX against discrimination on the basis of sex. But reading “sex” to include “gender identity,” as the district court did, would result in situations where an entity would be prohibited from installing or enforcing the otherwise permissible sex-based carve-outs when the carve-outs come into conflict with a transgender person’s gender identity. Such a reading would thereby establish dual protection under Title IX based on both sex and gender identity when gender identity does not match sex. That conclusion cannot comport with the plain meaning of “sex” at the time of Title IX’s enactment and the purpose of Title IX and its implementing regulations, as derived from their text.
Finally, in this appeal, any action by the School Board based on sex stereotypes is not relevant to Adams’s claim because, as discussed, Title IX and its implementing regulations expressly allow the School Board to provide separate bathrooms “on the basis of sex.” See 20 U.S.C. §§ 1681(a), 1686; 34 C.F.R. § 106.33. Regardless of whether Adams argues that the bathroom policy itself violates
