USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 74 of 80
homosexuality, a common belief among psychiatrists was that “trans people [were] severely mentally disturbed.” See id. at 114, 116–17. Indeed, the American Psychiatric Association first classified “Gender Identity Disorders” as psychosexual disorders in which a person’s internal sense of gender did not align with his or her anatomy. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 261 (3d ed. 1980). Consistent with this view, “[m]ainstream medical thinking” when Title IX became law was firmly opposed to sex-reassignment surgery. Drescher, supra, at 111–12. Even among its proponents, “[s]ex reassignment was … considered not a cure, but a palliative treatment.” Dallas Denny, A Selective Bibliography of Transsexualism, 6 J. Gay & Lesbian Psychotherapy 35, 38 (2002). It is untenable to construe transgender status, which even the medical community saw as a departure from the norm, as altering the norm itself among the general public.
In deciding otherwise, the vacated majority opinion erroneously concluded that the safe harbor for bathrooms does not apply because Title IX and its regulations do not “declare” whether “sex” as applied to Adams is the “sex identified at birth”—female—or the sex listed on Adams’s amended birth certificate and driver’s license—male. Vacated Majority Op. at 40–41 (quoting Bostock, 140 S. Ct. at 1746). But the ordinary meaning of “sex” in the safe-harbor provision does not change when a plaintiff is transgender. See Cochise
74
