USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 79 of 80
The district court also failed to grapple with the fact that Congress enacted Title IX under its Spending Clause power. As explained above, the district court could impose liability only if it concluded that the meaning of “sex” in Title IX unambiguously did not turn on reproductive function. In other words, even if the district court were correct that “sex” was ambiguous and that the best interpretation of “sex” when Congress enacted Title IX was gender identity—and, to reiterate, it was not on either count—Title IX still would not prohibit a school from separating bathrooms on the basis of sex. *** In its last attempt to resolve this appeal, the majority transformed an appeal that it should have resolved with straightforward applications of intermediate scrutiny and statutory interpretation into something unrecognizable. It misunderstood the policy at issue, ignored decades of precedent, dismissed any sex-specific interest in bathroom privacy, and flouted foundational principles of statutory interpretation. In the process, it issued a holding with radical consequences for sex-separated bathrooms. Almost no aspect of its analysis emerged unscathed. Even the majority now tacitly acknowledges that its opinion could not withstand scrutiny.
The new majority opinion is shorter, but it is no less wrong. Instead of merely misunderstanding the policy at issue, the majority now substitutes the
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