Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 62 of 70 PageID 10740
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616, n.1 (1999) (“This Court has also looked to its Title VII interpretations of discrimination in illuminating Title IX.” (collecting cases)).
In looking for Title IX guidance, the transgender school bathroom decisions inevitably consider Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held in a Title VII case that discrimination on the basis of gender stereotype is sex-based discrimination. The transgender school bathroom cases also look to Price Waterhouse’s progeny, including the Eleventh Circuit’s Glenn decision which, though an Equal Protection case, turned to Title VII precedent for guidance and stands as authority for the proposition that “discrimination against a transgender individual because of [ ] gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”[1] Glenn, 663 F.3d at 1317; see, e.g., Boyertown, 893 F.3d at 199 (“We are not alone in reaching th[e] conclusion” that “Title
- ↑ The Court rejects the School Board’s crimped interpretation of Glenn, which it attempts to distinguish by claiming that, unlike Glenn, the School Board does not engage in gender or sex stereotyping when it excludes Adams from the boys’ bathroom. As explained in Glenn, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” 663 F.3d at 1316 (quotation and citations omitted). This is borne out by the facts of this case. Adams’ desire to use the boys’ bathroom stems from his gender identity, which is not in accordance with the sex he was assigned at birth. The School Board policy that excludes Adams is based on its belief that he is not acting in conformity with the sex he was assigned at birth.
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