Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2020).pdf/73

 stereotype. … Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”). Whether or not the Board based its policy on sex stereotypes does not matter for this claim because that question would determine only whether the Board acted “on the basis of sex.” 20 U.S.C. § 1681(a). Title IX and its regulations expressly allow the Board to do so to provide separate bathrooms. See id. § 1686; 34 C.F.R. § 106.33.

Like the majority, the district court also failed to grapple with the fact that Congress enacted Title IX under its Spending Clause power. As explained above, the district court could impose liability only if it concluded that the meaning of “sex” in Title IX unambiguously did not turn on reproductive function. In other words, even if the district court were correct that “sex” was ambiguous and that the best interpretation of “sex” when Congress enacted Title IX was gender identity—and, to reiterate, it was not on either count—Title IX still would not prohibit a school from separating bathrooms on the basis of sex.

The majority transforms an appeal that it should have resolved with straightforward applications of intermediate scrutiny and statutory interpretation into something unrecognizable. Almost no aspect of its analysis emerges unscathed. The majority misunderstands the policy at issue, ignores decades of precedent, dismisses any sex-specific interest in bathroom privacy, and flouts