A federal court of appeals has held that Title IX’s prohibition on discrimination “on the basis of sex” refers to biological sex, not gender identity. The year-end ruling by the United States Court of Appeals for the 11th Circuit calls into question the legality of the Biden administration’s proposed Title IX rules, which equate “gender identity” with “sex” and would require schools to open up women’s sports and other spaces to males who identify as women.

The case, Adams v. Sch. Bd. of St. Johns Cty., involved a challenge to a Florida school district’s bathroom policy. The Florida school district separates bathrooms based on biological sex while providing sex-neutral bathroom accommodations for students who identify as trans or gender fluid.

The 11th Circuit ruled 7-4 on December 30 that the bathroom policy violates neither Title IX of the Education Amendments of 1972 nor the U.S. Constitution. The court rejected the claim that the school board’s actions discriminated against trans-identifying students. To the contrary, Judge Barbara Lagoa pointed out that, 

the School Board provided this accommodation only after undertaking significant education efforts and receiving input from mental health professionals and LGBTQ groups both within and beyond the School District community.

But the decision has implications far beyond the bathroom context, as Title IX prohibits discrimination “on the basis of sex” in all aspects of education. 

In determining whether the policy at issue violated Title IX, the court of appeals was forced to consider whether the word “sex”, as used in the statute, includes “gender identity.” The court held that it does not, noting that if Congress wants to prohibit discrimination against trans-identifying students, it must say so explicitly. 

Judge Lagoa wrote, 

[a contrary ruling] would have broad implications for sex-separated sports teams at institutions subject to Title IX, including public schools and public and private universities. . . [and] would provide more protection against discrimination on the basis of transgender status under the statute and its implementing regulations than it would against discrimination on the basis of sex.

Significantly, the court rejected the lower court’s application of the Supreme Court’s 2019 Bostock decision to Title IX. In Bostock v. Clayton County, the Supreme Court held that an employer that fires an employee because he is gay or transgender violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment. But the Court was clear that it was not redefining the word “sex” and that its ruling was strictly limited to workplace hiring and firing decisions under Title VII. 

In Adams, the 11th circuit ruled that Bostock is not controlling in school cases governed by Title IX, a spending clause statute with specific carve-outs for sex-specific spaces. Several other courts have incorrectly held that Bostock does apply to Title IX, potentially setting up the issue for resolution by the U.S. Supreme Court.  

To learn more about Title IX and the Biden administration’s proposed rules, visit IWF’s Title IX Resource Center.

To learn more about sex, gender, and gender identity generally, check out IWLC’s Legal Policy Focus: Sex is Better than Gender.

To learn more about the threat to women’s sports, check out IWF’s Women’s Sports Resource Center.