Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 61 of 70 PageID 10739
subsequent to that withdrawal have found a likelihood (or permitted cases to proceed on a claim) that a policy that prohibits transgender students from using a bathroom matching their gender identity have separated students “on the basis of sex” within the meaning of Title IX. See Whitaker, 858 F.3d at 1049–50 (affirming entry of preliminary injunction in favor of transgender student on Title IX claim); Grimm, 302 F. Supp. 3d at 742–48 (noting withdrawal of earlier guidance, but holding transgender student had stated a Title IX claim for sex discrimination); A.H., 290 F. Supp. 3d at 329 (same); Evancho, 237 F. Supp. 3d at 283, n.23 (denying school district’s motion to dismiss on transgender students’ Title IX claim, finding plaintiffs had crossed the pleading threshold despite not meeting the “extraordinary” standard needed to secure a preliminary injunction based on Title IX).
Finding that Title IX does not define the ambiguous terms “sex” and “on the basis of sex” for purposes of their application to transgender students, many courts have looked to decisions interpreting other anti-discrimination statutes, particularly Title VII, which prohibits employment discrimination based on, among other things, sex. 42 U.S.C. §§ 2000e et seq. See, e.g., Boyertown, 893 F.3d at 195, n.103 (“Courts have frequently looked to Title VII authority for guidance with Title IX cases.”); Whitaker, 858 F.3d at 1047–49 (reviewing Title VII and Equal Protection Clause case law to decide Title IX transgender school bathroom issue); M.A.B., 286 F. Supp. 3d at 713–15 (same); Grimm, 302 F. Supp. 3d at 744-47 (same); see also
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