USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 72 of 80
construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” Id. § 1686. The implementing regulations clarify that institutions “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33.
Whether the Board violated Title IX turns on the answer to one question: what does “sex” mean in Title IX? Regardless of whether separating bathrooms by sex would otherwise constitute discrimination “on the basis of sex,” 20 U.S.C. § 1681(a), the bathroom policy does not violate Title IX if it falls within the safe harbor for “separate toilet … facilities on the basis of sex.” 34 C.F.R § 106.33. And if the school policy is valid under Title IX, then Title IX also permits the schools to require all students, including Adams, to follow that policy. Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 30, at 192–93 (2012) (“[W]henever a power is given by a statute, everything necessary to making it effectual or requisite to attaining the end is implied.” (quoting 1 James Kent, Commentaries on American Law *464)).
Contrary to Adams’s arguments, the Supreme Court did not resolve this question in Bostock. Far from it. Not only did the Court “proceed on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and
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