USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 43 of 150
Title IX’s general prohibition against sex discrimination, this Court must still determine whether the application of the policy fits into Title IX’s carve-out, which it does. An example makes this clear.
Think of a biological female student, who does not identify as transgender and who sued her school under Title IX to gain access to the male bathroom. Regardless of whether preventing the female student from using the male bathroom would constitute separation on the basis of sex—and it plainly would—the carve-out for bathrooms under Title IX would provide the school a safe harbor. In other words, because Title IX explicitly provides for separate bathrooms on the basis of sex, the student’s claim would fail. So, too, must Adams’s claim, because the carve-out for bathrooms provides the School Board a safe harbor for the same reasons.[1]
In summary, Title IX prohibits discrimination on the basis of sex, but it expressly permits separating the sexes when it comes to
- ↑ Nevertheless, the dissent, using Bostock, argues “that ‘sex’ was a but-for cause of the discrimination Adams experienced,” which the dissent argues violates Title IX. Jill Pryor Dis. Op. at 59. This argument is of no avail. Under the dissent’s theory, any lawful policy separating on the basis of “sex” pursuant to Title IX’s statutory and regulatory carve-outs would inherently provide the “but-for cause of … discrimination” that the dissent is concerned about because such a policy inherently involves distinguishing between the sexes from the outset. The dissent’s theory, then, would swallow the carve-outs and render them meaningless because, as the dissent would have it, any policy separating by “sex” would provide “a but-for cause of … discrimination” if a litigant felt that she or he had been discriminated against by the sex-based separation authorized by the carve-outs. Adams, who is a biological female
