USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 59 of 150
their communities and the broader society to reap the benefits of their empowerment.
Id. at 132 (footnote omitted).
Affirming the district court’s conclusion that “the meaning of ‘sex’ in Title IX includes ‘gender identity’” would open the door to eroding Title IX’s beneficial legacy for girls and women in sports. And removing distinctions based on biological sex from sports, particularly for girls in middle school and high school, harms not only girls’ and women’s prospects in sports, but also hinders their development and opportunities beyond the realm of sports—a significant harm to society as a whole. **** To summarize, as a matter of principled statutory interpretation, there can only be one definition of “sex” under Title IX and its implementing regulations. Departing from a biological and reproductive understanding of such a definition, as supported by the overwhelming majority of drafting-era dictionaries, would have vast societal consequences and significantly impact girls’ and women’s rights and sports. The majority opinion is correct not to depart from such an understanding absent a clear statement from Congress. Whether “sex,” as set forth in a statute enacted in 1972, should be updated to include “gender identity” or “transgender status” is best left for Congress and the democratic and legislative processes—not to unelected members of the Judiciary.
