Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/35

 of sex. 34 C.F.R. § 106.31(b)(4). Neither can a school “[p]rovide different aid, benefits, or services or provide aid, benefits or services in a different manner” because of sex. § 106.31(b)(2).

As with his equal protection claim, Mr. Adams’s claim of sex discrimination is stated narrowly. He argues the School District excluded him from the boys’ restroom because he is transgender. He says this policy constitutes discrimination on the basis of sex in violation of Title IX. Although one would never know it from reading the dissenting opinion, Mr. Adams does not argue that providing separate restrooms for boys and girls violates Title IX. Nor do we think he could. The statute’s implementing regulations specifically authorize “separate toilet, locker room, and shower facilities on the basis of sex,” as long as all facilities are “comparable.” 34 C.F.R. § 106.33.

The School Board argues Mr. Adams did not suffer any discrimination. The Board reads to hold that “a woman who identifies as a man—a transgender man—is a woman.” Appellant’s Suppl. Br. at 3. This being the Board’s view, it argues that Mr. Adams was treated just the same as all girl students at Nease High School. But the School Board, like the dissenting opinion, misapprehends. explained that if an employer fires a transgender female employee but retains a non-transgender female employee, this differential treatment is discrimination because of sex. 140 S. Ct. at 1741–42. In the same