USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 44 of 150
bathrooms and other living facilities. When we read “sex” in Title IX to mean “biological sex,” as we must, the statutory claim resolves itself. Title IX’s implementing regulations explicitly allow schools to “provide separate toilet … facilities on the basis of [biological] sex.” 34 C.F.R. § 106.33. The School Board does just that. Because the School Board thus acts in accordance with Title IX’s bathroom-specific regulation, its decision to direct Adams—who was born, and enrolled in the School District as, a female—to use the female bathrooms is consistent with Title IX’s precepts. As such, Adams’s claim under the statute must fail.
2. Even if the Statute Were Unclear, the Spending Clause Militates Toward Finding for the School Board
Even if the term “sex,” as used in Title IX, were unclear, we would still have to find for the School Board. This is because Congress passed Title IX pursuant to its authority under the Spending Clause. U.S. Const. art. I, § 8, cl. 1; Davis, 526 U.S. at 640 (“[W]e have repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause.”). And “if Congress intends to impose a condition on the grant of federal moneys [under its Spending Clause authority], it must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Further, “private damages actions are available only where
alleging discrimination based on not being able to access the bathrooms reserved for biological males, is no different from such a litigant.
