USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 73 of 80
female,” it disclaimed deciding whether Title VII allows for sex-separated bathrooms. Bostock, 140 S. Ct. at 1739, 1753. And any guidance Bostock might otherwise provide about whether Title VII allows for sex-separated bathrooms does not extend to Title IX, which permits schools to act on the basis of sex through sex-separated bathrooms. See 20 U.S.C. § 1686; 34 C.F.R. § 106.33.
Turning to the provisions at issue, this question is not close. As used in Title IX and its implementing regulations, “sex” unambiguously is a classification on the basis of reproductive function. We must, of course, give words in statutes the ordinary meaning they conveyed when Congress enacted them. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019); Scalia & Garner, Reading Law §§ 6–7, at 69–71, 78–79. And “sex” has never meant gender identity. See, e.g., Sex, The American Heritage Dictionary of the English Language (New College ed. 1979) (defining “sex” by reference to reproductive functions); Sex, The Random House College Dictionary (rev. ed. 1980) (same); see also Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) (similar).
That “sex” did not mean gender identity is unsurprising. When Congress enacted Title IX in 1972, psychiatric literature conflated sexual orientation with gender identity. See Jack Drescher, Transsexualism, Gender Identity Disorder and the DSM, 14 J. Gay & Lesbian Mental Health 109, 111 (2010). And as with
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