USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 48 of 150
implementing regulations say, first, that “[n]o person shall, on the basis of sex, be excluded from participation in … any interscholastic, intercollegiate, club or intramural athletics offered by a recipient [of federal funds], and no recipient shall provide any such athletics separately on such basis.” 34 C.F.R. § 106.41(a). In the very next paragraph, however, the regulations instruct that, notwithstanding the above statement, “a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Id. § 106.41(b). Thus, equating “sex” to “gender identity” or “transgender status” would also call into question the validity of sex-separated sports teams.
To be sure, the district court disclaimed any suggestion that its decision would apply beyond the bathroom. But Title IX is not so limited; it applies to “living facilities,” 20 U.S.C. § 1686, “toilet, locker room, and shower facilities,” 34 C.F.R. § 106.33, and sports teams, id. § 106.41, at any institution subject to its mandates. The district court did not identify any textual or other support—because there is none—for its claim that its reading of “sex” applies only to high school bathrooms. Neither can the dissent identify any textual or persuasive support to cabin the district court’s decision to high school bathrooms. Jill Pryor Dis. Op. at 62-64. If “sex” as used in Title IX means “gender identity” or “transgender status,” then there is simply no principled reason to limit application of the district court’s reasoning to the high school bathroom. Absent a clear statement from Congress, such a reading of Title IX would
