Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/39

 (recognizing that “laws excluding same-sex couples from the marriage right impose stigma and injury”).

Every court of appeals to consider bathroom policies like the School District’s agrees that such policies violate Title IX. The Seventh Circuit has held that “[a] policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”, 858 F.3d at 1049. The Sixth Circuit, affirming a preliminary injunction order, stated that, under Title IX, “transgender students are entitled to access restrooms for their identified gender rather than their biological gender at birth.”, 845 F.3d at 221. We agree with our sister circuits.

The School Board believes 34 C.F.R. § 106.33 of the Title IX implementing regulations forecloses Mr. Adams’s discrimination claim. Section 106.33 reads: "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."

The School Board argues that the use of the term “sex” in this regulation clearly means “biological sex,” or sex assigned at birth. Thus, it asserts that dividing restrooms by sex assigned at birth—requiring transgender boys to use the girls’ restroom and transgender girls to use the boys’ restroom—cannot be