USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 45 of 150
recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” Davis, 526 U.S. at 640.
A safeguard of our federalist system is the demand that Congress provide the States with a clear statement when imposing a condition on federal funding because “legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” Pennhurst, 451 U.S. at 17. Thus, the “legitimacy of Congress’ power to legislate under the [S]pending [Clause] … rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Id. (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 585–98 (1937)). Otherwise, if Congress’s spending authority were “to be limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause” would “give[] ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.” South Dakota v. Dole, 483 U.S. 203, 217 (1987) (O’Connor, J., dissenting) (quoting United States v. Butler, 297 U.S. 1, 78 (1936)).
Under the Spending Clause’s required clear-statement rule, the School Board’s interpretation that the bathroom carve-out pertains to biological sex would only violate Title IX if the meaning of “sex” unambiguously meant something other than biological sex, thereby providing the notice to the School Board that its understanding of the word “sex” was incorrect. As we have thoroughly
