USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 52 of 150
sports carve-out. Bostock v. Clayton County, 140 S. Ct. 1731, 1779 n.48 (2020) (Alito, J., dissenting).
Affirming the district court’s order and adopting Adams’s definition of “sex” under Title IX to include “gender identity” or “transgender status” would have had repercussions far beyond the bathroom door. There simply is no limiting principle to cabin that definition of “sex” to the regulatory carve-out for bathrooms under Title IX, as opposed to the regulatory carve-out for sports or, for that matter, to the statutory and regulatory carve-outs for living facilities, showers, and locker rooms. And a definition of “sex” beyond “biological sex” would not only cut against the vast weight of drafting-era dictionary definitions and the Spending Clause’s clear-statement rule but would also force female student athletes “to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female.” Id. at 1779–80. Such a proposition—i.e., commingling both biological sexes in the realm of female athletics—would “threaten[] to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.” Id. at 1779.
To understand why such a judicially-imposed proposition would be deleterious, one need not look further than the neighborhood park or local college campus to see the remarkable impact Title IX has had on girls and women in sports. At nearly every park in the country, young girls chase each other up and down soccer fields, volley back and forth on tennis courts, and shoot balls into
