Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/40

 discriminatory under Title IX. The Board considers Mr. Adams a “biological female,” and it seeks to exclude him from the boys’ restroom on this basis.

But Mr. Adams’s discrimination claim does not contradict the implementing regulations for two reasons. First, Mr. Adams is not challenging § 106.33’s provision of separate restrooms for girls and boys. He is simply seeking access to the boys’ restroom as a transgender boy. And second, the regulation does not mandate how to determine a transgender student’s “sex.” Thus, we perceive no conflict between the text of § 106.33 and Mr. Adams’s successful claim of discrimination.

Title IX says nothing about Mr. Adams’s “sex.” To start, Title IX and its accompanying regulations contain no definition of the term “sex.” “Also absent from the statute is the term ‘biological.’”, 858 F.3d at 1047. It seems fair to say that § 106.33 tells us that restrooms may be divided by male and female. But the plain language of the regulation sheds no light on whether Mr. Adams’s “sex” is female as assigned at his birth or whether his “sex” is male as it reads on his driver’s license and his birth certificate. While the School Board maintains that Mr. Adams’s sex is female, the State of Florida recognizes his sex as male. The federal government is also prepared to recognize Mr. Adams’s sex as male, if he seeks an updated passport. As the Supreme Court observed in, transgender individuals have “one sex identified at birth and another today.” 140