Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 54 of 70 PageID 10732
institution “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33.
To prove his claim here, Adams must demonstrate that (1) he was subjected to discrimination in an educational program or activity; (2) the discrimination was “on the basis of sex;” (3) the School Board receives federal funding; and (4) the discrimination caused him harm. See Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996); Highland, 208 F. Supp. 3d at 865. The St. Johns County School Board receives federal financial assistance and is subject to Title IX. Doc. 116 at § I, ¶ 2; Doc. 151, Pl. Ex. 138 at Request for Admission # 3 & 4. The School Board does not contest that the use of the school restrooms is an “education program or activity” within the meaning of Title IX. See Highland, 208 F. Supp. 3d at 865 (“Access to the bathroom is … an education program or activity under Title IX.”). The Court’s consideration in the Equal Protection analysis of harm to Adams caused by the School Board policy excluding Adams from the boys’ restrooms applies here too. Thus, as in a number of other cases where transgender students have raised Title IX challenges to their school’s bathroom policies, the issue here is whether the bathroom policy which excludes Adams from the boys’ restroom based on his transgender status is discrimination “on the basis of sex” as used in Title IX and its implementing regulations.
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