Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 57 of 70 PageID 10735
18, 2016) (finding dictionary definitions of “sex” included room for “gender identity”). The Court does not find the plain meaning of the word “sex” as used in Title IX to be apparent from contemporaneous dictionary definitions.
Nor is the Court persuaded that the legislative history relied on by the School Board provides a definitive answer, as it merely emphasized that Title IX was not intended to integrate the sexes (something no one is advocating here). See Doc. 173-1 at 28–29 (relying on statements of Title IX’s sponsor, Senator Birch Bayh). Subsequent uses of the terms “gender” and “gender identity” in other statutes likewise fail to convince the Court that the omission of those terms in Title IX was intentional. The presumption that terms are used consistently by Congress is “entitled to less force where, as here, the [School Board] points to terms used in different statutes passed by different Congresses in different decades.” Zarda v. Altitude Express, Inc., 883 F.3d 100, 129 (2d Cir. 2018); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174–75 (2005) (holding that Title IX’s use of broad term “discrimination” included retaliation, notwithstanding that Title VII showed Congress’ ability to provide express prohibitions against specific kinds of discrimination, including retaliation); Robinson, 519 U.S. at 340–44 (holding that Title VII’s use of the term “employee” included “former employee” even though later statutes specifically used “former employee” when describing category of persons covered by term “employee”); United States v. Wise, 370 U.S. 405, 414 (1962) (finding subsequent Congress’ interpretation
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