Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 55 of 70 PageID 10733
Title IX does not define the term “sex,” nor do its regulations. There is no Eleventh Circuit or Supreme Court authority directly on point. Adams argues the term “sex” includes gender identity, whereas the School Board contends the term “sex” means “biological sex.” Given the lack of definition within the statute or regulation, and recognizing that a number of courts have struggled with this exact question, this Court finds the term “sex” as used in Title IX is ambiguous as applied to transgender students. Cf. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (Thomas, J., for the unanimous court) (explaining that statutory interpretation is unnecessary “if the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case”) (emphasis supplied).
The School Board raises four main arguments in support of its interpretation: first, the meaning of the word “sex” as based on dictionary definitions at the time Title IX was enacted and its legislative history support a conclusion that “sex” means “biological sex;” second, Title IX permits schools to provide separate boys’ and girls’ bathrooms so it cannot be a violation to separate the sexes in the restrooms; third, the Department of Education’s current interpretation of Title IX refutes the argument that “sex” includes “gender identity;” and fourth, court decisions that have utilized Title VII principles to glean a definition of sex (cases upon which plaintiff relies for his
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