USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 78 of 80
which begets young, or any division or group corresponding to it”). The district court had no reason to conclude that the term was ambiguous.
The decision to resolve the purported ambiguity as applied to transgender students with Price Waterhouse and Glenn fares no better. The district court erred by assuming that “sex” could have different meanings as applied to transgender and non-transgender persons. See Cochise Consultancy, 139 S. Ct. at 1512. Further, neither Price Waterhouse nor Glenn redefined the meaning of “sex.” They held only that when an employer acts against a member of one sex for failing to conform to stereotypes associated with that sex—for example, dressing like the opposite sex—that employer has acted because of sex. See Price Waterhouse, 490 U.S. at 250 (holding that an employer discriminated on the basis of sex when he “act[ed] on the basis of a belief that a woman cannot be aggressive, or that she must not be”); Glenn, 663 F.3d at 1318–19 (“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype. … Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”). Whether or not the Board based its policy on sex stereotypes does not matter for this claim because that question would determine only whether the Board acted “on the basis of sex.” 20 U.S.C. § 1681(a). Title IX and its regulations expressly allow the Board to do so to provide separate bathrooms. See id. § 1686; 34 C.F.R. § 106.33.
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