Page:Adams ex rel. Kasper v. School Board of St. Johns County, Florida (2022).pdf/51

, Circuit Judge, Specially Concurring:

I concur fully in the majority opinion’s determination that the School Board of St. Johns County’s unremarkable bathroom policy neither violates the Equal Protection Clause nor Title IX. I write separately to discuss the effect that a departure from a biological understanding of “sex” under Title IX—i.e., equating “sex” to “gender identity” or “transgender status”—would have on girls’ and women’s rights and sports.

As discussed in the majority opinion, Title IX does not explicitly define “sex” within its statutory scheme and corresponding implementing regulations. And Title IX’s statutory language says nothing specifically about sports. But the Title IX regulations that apply to sports do, and those regulations mirror the blanket-rule-with-specific-exception framework that Title IX statutorily applies to living facilities. Indeed, notwithstanding the broad prohibition against discrimination “on the basis of sex” in athletics, 34 C.F.R. § 106.41(a), the implementing regulations also allow a recipient of federal funds to “operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport,” id. § 106.41(b). As with all of Title IX’s regulatory carve-outs allowing certain sex-separated activities, the interpretation of “sex” in the sex-separated sports carve-out flows from the meaning of “sex” within Title IX itself. And the interpretation of “sex” in the statute “would of course take precedence” when interpreting “sex” in the regulatory