Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 58 of 70 PageID 10736
of term used in earlier-enacted statute was not relevant in construing term’s meaning); Whitaker, 858 F.3d at 1049 (rejecting argument that Congress’ failure to add transgender status as a protected characteristic to Title IX signaled an intentional omission). As the Supreme Court has explained, “[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quotation and citation omitted).
The School Board also argues that because Title IX explicitly allows “separate living facilities for the different sexes,” 20 U.S.C. § 1686, and its implementing regulations permit schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” 34 C.F.R. § 106.33, it cannot be a violation of the statute to provide school restrooms which are separated based on “biological sex.” The Court is unpersuaded. Because neither Title IX nor the regulation define “sex” or “on the basis of sex,” the statute and regulation cannot be presumed to mean “biological sex.”[1] Adams is not contending that the school cannot provide separate restrooms for the sexes–he just wants the school to recognize that, interpreting sex to include
- ↑ The FHSAA (which governs competitive interscholastic sports at Florida high schools (including Nease) and allows students to play on teams based on their gender identity) apparently finds Title IX’s use of the word “sex” includes “gender identity.” See 34 C.F.R. § 106.41(b) (Title IX regulation governing athletics, stating that schools may operate “separate teams for members of each sex”).
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