Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022).pdf/146

 The majority opinion’s analysis of Adams’s Title IX claim relies on statutory and regulatory carveouts, which, it says, foreclose the claim. It points to the following language in Title IX: “[N]othing contained [in Chapter 38] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. The majority opinion also points to Title IX’s implementing regulations, which allow for “separate toilet[s], locker room[s], and shower facilities on the basis of sex.” 34 C.F.R. § 106.33.

But all the carveouts “suggest[] is that the act of creating sex-separated [facilities] in and of itself is not discriminatory.” Grimm, 972 F.3d at 618. That is, separating the sexes based on biological sex is not per se a violation of Title IX. The carveouts do not, however, address how an educational institution may assign a person to a facility when the biological markers of his sex point in different directions. Nor do the carveouts permit an educational institution to “rely on its own discriminatory notions of what ‘sex’ means.” Id. (emphasis added). Adams, a transgender boy, has biological markers of sex indicating that he is male and markers indicating that he is female. The School District’s policy categorically assigned transgender students, including Adams, to bathrooms based on