USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 41 of 150
or that she must not be, [has discriminated on the basis of sex].”); Glenn, 663 F.3d at 1318–19 (“All persons, whether transgender or not, are protected from discrimination on the basis of [a sex stereotype].”).
Neither case reads “gender identity” into the definition of “sex”; they discuss unlawful action by employers’ reliance on impermissible stereotypes. And, as discussed above, “sex” is not a stereotype. Just as importantly, and contrary to Adams’s arguments that Bostock equated “sex” to “transgender status,” the Supreme Court in Bostock actually “proceed[ed] on the assumption” that the term “sex,” as used in Title VII, “refer[ed] only to biological distinctions between male and female.” 140 S. Ct. at 1739 (emphasis added). There simply is no alternative definition of “sex” for transgender persons as compared to nontransgender persons under Title IX. The district court erred by divining one, and applying that definition to Adams, because courts must “avoid interpretations that would ‘attribute different meanings to the same phrase’” or word in “all but the most unusual” of statutory circumstances. Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1512 (2019) (quoting Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 329 (2000)).
In this regard, the district court’s error is made even clearer when we consider the ramifications of its reading of Title IX. Reading “sex” to include “gender identity,” and moving beyond a biological understanding of “sex,” would provide more protection against discrimination on the basis of transgender status under the
