Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/43

, 822 F.3d 709, 720–21 (4th Cir. 2016) (observing that § 106.33 does not explain how to determine an individual’s maleness or femaleness for purposes of restroom use), , 580 U.S. ___, 137 S. Ct. 1239 (2017).

The School Board then argues that the Department of Education (“DOE”) and the Department of Justice (“DOJ”) endorse its reading of “sex” as “biological sex.” In 2016, the DOE’s Office for Civil Rights and the DOJ’s Civil Rights Division jointly issued a “Dear Colleague” letter instructing that discrimination based on sex encompassed “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Then, in 2017, the DOE and DOJ withdrew this guidance in a second “Dear Colleague” letter. The withdrawal letter reasoned that the 2016 guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did [it] undergo any formal public process.”

The School Board believes the withdrawal of the 2016 guidance signifies the DOE’s new position that sex discrimination does not include discrimination because of gender identity. We are unpersuaded. The 2017 letter contained no substantive interpretation of the meaning of “sex discrimination” in Title IX. It merely withdrew the 2016 guidance for lack of sufficient legal explanation and formal process. Since the 2017 letter contains no substantive interpretation of Title