by Zachary Kasdin*

Should courts extend the protections of Title IX of the Civil Rights Act to protect not only transgender students who identify within the binary genders “male” or “female,” but also to nonbinary, gender-nonconforming (“GNC”), and intersex students? In this Contribution, Zachary Kasdin (’24) analyzes the two leading doctrinal approaches to the question of whether a school discriminates against a transgender student “because of sex” when it denies that student access to whichever bathroom aligns with their gender identity. He then argues that, despite some difficulties, both approaches leave room for nonbinary, GNC, and intersex students to bring compelling Title IX claims in the school bathroom-access context.

For many, the Supreme Court released a “momentous” decision in 2020,1 when it held in Bostock v. Clayton County that Title VII’s prohibitions against workplace discrimination extend to gay and transgender persons.2

Justice Samuel Alito disagreed. In his dissenting opinion, Justice Alito worried that the Court’s decision opened a dangerous can of worms. “[T]ransgender persons,” he warned, could now argue “that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify.”3 He further cautioned that, because “the Court does not define what it means by a transgender person, the term may apply to individuals who are ‘gender fluid,’ that is, individuals whose gender identity is mixed or changes over time.”4

Justice Alito’s fears have in part materialized, much to the benefit of transgender students across the country. Since Bostock, lower courts have applied the logic of the Court’s Title VII decision to Title IX cases, consistently holding that transgender students have a right to use bathrooms or changing rooms consistent with their gender identities.5 Yet these same courts have declined to consider whether these protections extend to nonbinary and gender-nonconforming (“GNC”) people.6 Indeed, rather than challenging the existence of sex-segregated bathrooms, the plaintiffs across these cases have depended upon them; they have sought to gain access to either the boys’ or girls’ bathrooms, not to eliminate these distinctions.7

Instead of making space for broader legal conceptions of sex and gender, these cases have thus “reinforced the concept of separate facilities for boys and girls,” policing students’ gender expression in the process.8 At the same time, district and circuit courts have rested their bathroom-access holdings on opaque distinctions between sex, gender, biological sex, and sex-assigned-at-birth.9 These ambiguities create an uncertain future for Title IX, giving plaintiffs little clarity about the statute’s scope.

Transgender student bathroom bans have gained increasing attention over the past several years, especially after December 2022, when the Eleventh Circuit became the first circuit court to rule against a transgender student plaintiff in a bathroom access case.10 As social acceptance of nonbinary people continues to grow in the United States, courts will likely confront increasing cases concerning GNC students’ bathroom access.11

This Contribution analyzes how, post-Bostock, courts might extend Title IX bathroom-access protections to nonbinary and GNC identities. Ultimately, while Title IX jurisprudence may very well stretch to protect transgender, nonbinary, and intersex students, these identities ultimately reveal the doctrinal and normative limits of protecting students’ identities “on the basis of sex” alone.

* * * *

Congress passed Title IX in 1972 as part of the Education Amendments of 1972, patterning it after Title VII of the Civil Rights Act of 1964.12 The law states in relevant part that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”13 These prohibitions “change[d] the course of education for millions of women and girls in the United States.”14 Over the past five years, however, an increasing number of courts have applied Title IX to protect the rights of transgender students across the country—especially regarding their access to school bathrooms that align with their gender identities.15

To prevail in a Title IX sex discrimination claim, a plaintiff must show that (1) they were subjected to discrimination in an educational program or activity; (2) the discrimination was “on the basis of sex”; and (3) the relevant School Board receives federal funding.16 In most bathroom-access cases, the parties agree that schooling constitutes an educational program and that the school receives federal funding.17 As a result, these cases typically turn solely on the question of whether transgender students have experienced discrimination “on the basis of sex.” Under Title IX, discrimination occurs where a school treats an individual worse than those who are “similarly situated.”18

Before 2020, when the Supreme Court decided Bostock, courts often reviewed Title IX bathroom-access claims under a sex-stereotyping framework. The Seventh Circuit, for example, endorsed this logic in 2017, holding that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”19

The Supreme Court’s Bostock decision changed the framework for adjudicating these Title IX claims, even though the decision turned on a Title VII claim—and, indeed, even though the Bostock Court emphasized that it did “not purport to address [sex-segregated] bathrooms, locker rooms, or anything else of the kind.”20 In Bostock, the Court explained that “sex is necessarily a but-for cause when an employer discriminates against . . . transgender employees” because that employer “inescapably intends to rely on sex in its decision-making.”21 The majority of post-Bostock courts have reflexively extended this Title VII logic to Title IX, holding that a school district discriminates against transgender students “on the basis of sex” when they require them to use a bathroom inconsistent with their gender identities.22

This majority view first emerged in 2020—only two months after Bostock was handed down—when the Fourth Circuit ruled in favor of Gavin Grimm, who had been litigating his bathroom-access case since 2015.23 There, the Fourth Circuit imported the logic of Bostock in holding that the Gloucester County School Board necessarily discriminated against Grimm, a transgender boy, on the basis of sex when it denied him access to the boys’ bathroom.24 In reaching this holding, the Grimm court applied the same but-for reasoning the Bostock majority used:

In Bostock, the Supreme Court held that discrimination against a person for being transgender is discrimination “on the basis of sex.” . . . That is because the discriminator is necessarily referring to the individual’s sex to determine incongruence between sex and gender, making sex a but-for cause of the discriminator’s actions. . . . [Here, in the Title IX context,] the [School] Board could not exclude Grimm from the boys[’] bathroom without referencing his “biological gender” under the policy, which it . . . defined as the sex marker on his birth certificate. Even if the Board’s primary motivation in implementing . . . the policy was to exclude Grimm because he is transgender, his sex remains a but-for cause for the Board’s actions. Therefore, the Board’s policy excluded Grimm from the boys[’] restroom “on the basis of sex.”25

In principle, this application of Bostock makes sense: both Title VII and Title IX prohibit discrimination “on the basis of sex.”26 Courts have thus often “looked to . . . Title VII interpretations of discrimination in illuminating Title IX.”27 Yet, by applying Bostock to the Title IX context, the Fourth Circuit consequently embraced that decision’s textualist logic.28 As a result, Grimm’s claim primarily turned on how the court defined “sex.”29

For the majority, Grimm’s exclusion from the boys’ bathroom violated Title IX because it “excluded . . . [him] from the sex-segregated bathroom matching his gender identity.”30 Read plainly, this seems to suggest that the Board discriminatorily targeted Grimm’s gender identity when it denied him access to the boys’ bathroom, not his sex. Only two sentences later, however, the Court shifted its focus to sex, explaining that the Board wrongly relied “on its own discriminatory notions of what ‘sex’ means” when it exclude[d] Grimm from the boys’ bathroom.31 Reading these two sentences together, the Fourth Circuit seems to suggest that Title IX implicitly protects a student’s right to express their gender identity, even if that identity diverges from their sex assigned at birth—including through their use of whichever bathroom aligns with that gender identity. At the same time, the court proscribes schools from defining sex in a way that excludes notions of gender identity. Although it dismissed the School Board’s “invented classification” of “biological gender,” the Fourth Circuit therefore nevertheless blurs the lines between sex, gender, and biology in its analysis.32

The Seventh Circuit recently endorsed the Grimm model, analyzing bathroom-access claims through a Bostock-style analysis.33 As in Grimm, the underlying decisions affirmed by the Seventh Circuit34 avoid defining and demarcating the concepts of sex and gender, while, in practice, framing their sex-stereotyping jurisprudence squarely within the sex and gender binaries.35

Such murky definitions of sex and gender ultimately challenge the notion that the Fourth Circuit rendered its holding in Grimm by cleanly applying Bostock—which, unlike in Grimm, noted that sex “refer[s] only to biological distinctions between male and female.”36

In many ways, this elision of sex and gender makes sense: social scientists and philosophers have long emphasized the socially constructed and overlapping nature of the terms,37 while biologists have shown how biological factors influence both gender and sexual identity.38 In smoothing the edges between sex and gender, the Grimm court thus stretched the legal understanding of these concepts closer toward their social scientific meaning.39 Yet, sex in a legal context often “signif[ies] something different than ‘sex’ in social science and gender theory contexts.”40

Other courts, distinguishing themselves from Grimm, have drawn a much firmer line between sex and gender. Most notably, in Adams by and through Kasper v. School Board of St. Johns County, the Eleventh Circuit recently refused to “mov[e] beyond a biological understanding of sex” and read “sex to include gender identity” within the meaning of Title IX.41 The Adams court came to this interpretation in two steps. First, it declined to extend Bostock to the Title IX context because “Title IX, unlike Title VII, includes express statutory . . . carve-outs for differentiating between the sexes.”42 Second, the majority explained that these carve-outs shade the meaning of “sex” within the Title IX context: “[I]f ‘sex’ were ambiguous enough to include ‘gender identity,’ . . . then [the] carve-out . . . would be rendered meaningless.”43 Put simply, the Eleventh Circuit interprets Title IX to include only the “biological” components of sex to the exclusion of gender identity.

Other recent district court opinions have similarly drawn on a biological-essentialist understanding of sex—believing that it is biologically determined rather than a product of social circumstances.44 The Southern District of West Virginia recently reasoned, for example, that the exclusion of a transgender girl from a sex-segregated activity could never constitute discrimination, insofar as “transgender girls are biologically male[] . . . [and] biological males are not similarly situated to biological females for the purposes of [Title IX].”45 The Middle District of Tennessee agrees, explaining that “[a]bsent indication that ‘sex’ . . . means something more expansive tha[n] ‘biological sex,’ the Court presumes ‘sex’ has its ordinary meaning.”46 Again, here, the “ordinary meaning” encompasses biology to the exclusion of gender identity.

* * * *

Despite the expanding Title IX caselaw surveyed above, very few federal courts have heard bathroom-access cases involving nonbinary or gender nonconforming (“GNC”) students.47 It therefore remains an open question whether the Grimm or Adams models of Title IX jurisprudence can, in principle, accommodate nonbinary and GNC identities.

As a preliminary matter, nonbinary and GNC students might seek different remedies than their transgender counterparts.48 A binary transgender student’s Title IX claim rarely challenges the existence of sex-segregated bathrooms—and indeed, they often “logically depend[] upon [their] existence.”49 By contrast, a nonbinary student-plaintiff may seek “the creation of a third-gender category, the elimination of unnecessary sex segregation, or the reasonable accommodation of nonbinary people within a binary system.”50 These differences will certainly shape a nonbinary litigant’s strategy as they seek greater accommodations under Title IX. Yet, such practical considerations ignore the antecedent question of whether contemporary bathroom-access jurisprudence can accommodate nonbinary identities in the first place. Despite the Adams and Grimm models’ differences, both have the potential to stretch Title IX protections to nonbinary and GNC individuals.

The Grimm court leaves significant conceptual room to extend Title IX protections to nonbinary and GNC students. In rendering its decision, the Fourth Circuit emphasized how Title IX (1) provides a student with the right to access a bathroom consistent with their gender identity; and (2) proscribes a school from defining “sex” in a way that restricts a non-cisgender student from accessing the bathroom of their choice. Tracing this logic, a nonbinary student could similarly argue that their school discriminates against them “because of sex” (1) when it restricts them from accessing a bathroom consistent with their gender identity, even though that identity does not map onto the binary genders for which the school currently provides bathrooms; and (2) when it employs a discriminatory definition of sex, which in effect excludes a nonbinary student from both the boys’ and girls’ bathrooms. In either case, the nonbinary student, just like their binary transgender student colleagues, would face discrimination because “their gender identity is different from their sex assigned at birth”—no matter how they define that gender identity.51

While this argument likely holds water, it has two potential holes. First, the Grimm model relies in part on the idea that a transgender boy like Grimm and a cisgender male student are similarly situated for the purposes of Title IX.52 As the Fourth Circuit explained, because “Grimm consistently and persistently identified as male,” the school violated Title IX when it singled him out from all other boys and required him to use a different bathroom.53 Under this reasoning, a nonbinary or GNC student might have a difficult time identifying an effective group compared to which they were treated unlawfully.54 Unlike Grimm, whose discriminatory treatment singled him out among all other self-identifying boys, nonbinary students often identify as neither boys nor girls. These plaintiffs may get around this challenge, however, by leaning into the Grimm model’s broad reading of “sex” and arguing that “[t]he School District’s policy . . . subjects [them], as a [nonbinary] student, to different rules, sanctions, and treatment than” all other students, “in violation of Title IX.”55 In other words, these students could argue that they are similarly situated to all other students.

Second, a nonbinary plaintiff remains open to the counterargument that the Grimm court cabined its holding to a binary framework—in part by emphasizing that the “act of creating sex-separated restrooms in and of itself is not discriminatory.”56 Yet, nonbinary and GNC students, like their binary transgender classmates, might not challenge the existence of sex-segregated bathrooms at all; they may simply seek protections to ensure that they can access whichever bathroom best aligns with their nonbinary gender identity. Of course, a nonbinary student might depart from the typical bathroom-access claim and argue that their school district violates Title IX by providing gender-neutral bathrooms that are not “comparable” to the binary boys’ and girls’ bathrooms.57 Yet, even under this claim, the student does not per se challenge the existence of sex-segregated bathrooms; they simply seek an additional, gender-neutral bathroom facility of comparable quality. By relegating the nonbinary student to a separate bathroom of lower quality than all other students, no matter their gender, the school discriminates against them “on the basis of sex.”58

Despite its conservative holding, the Adams model also provides nonbinary and GNC students with the legal tools to bring plausible Title IX bathroom-access claims. Steeped in textualism, the Adams model excludes transgender students from Title IX protections by defining sex in strict “biological” terms. Here, the majority interpreted sex to mean “biology and reproductive function,” which in turn refers to “either male or female” status only.59 With this definition in hand, the Eleventh Circuit concluded that Title IX permits schools to separate bathroom facilities by biological sex, in part because all transgender students “are members of the female and male sexes by birth.”60 A school may therefore require a student like Adams, a transgender boy, to use the girls’ bathroom because he is a “biological female student.”61

Yet, the narrow understanding of “sex” adopted by the Adams majority belies the potential flexibility of its Title IX jurisprudence. In reaching its holding, the Adams court sorted sex into a neat biological binary. However, the court’s understanding of biological sex ignores “the medical-science definition of the term, which encompasses numerous biological components, including gender identity.”62 Even if a court adopts a narrow reading of Title IX and defines sex in strictly biological terms, “biological sex [still] includes gender identity.”63 At the same time, the Adams majority’s own definition of biological sex—one “based on chromosomal structure and anatomy at birth”—defies binary sorting in practice, too.64 Each year, up to two percent of children are born with intersex traits.65 These “natural physiological variations . . . complicate the typical binary of male and female,” no matter the individual’s gender identity.66

On balance, nonbinary, GNC, and intersex student-plaintiffs thus have considerable latitude to argue that Title IX’s protections against discrimination “because of sex” extend to them. Even on strict “biological” grounds, sex remains a flexible and capacious concept.67

* * * * 

Title IX jurisprudence is at a crossroads. Until the Eleventh Circuit handed down its Adams decision in late 2023, every circuit court to consider a transgender bathroom-access claim on the merits had extended Bostock’s logic to Title IX and held in favor of the student.68 The Adams court hewed in the other direction, holding that Title IX’s living facilities exception protected a school’s ability to “provide[] separate bathrooms for each of the biological sexes,” at the exclusion of transgender students.69 Despite this focus on transgender students’ access to school bathrooms, federal courts have remained silent on the question of what Title IX says about nonbinary, GNC, and intersex students in this context. Surprisingly, the academic literature does not speak precisely on this issue, either. This Contribution attempts to parse the doctrinal nuances of the bathroom-access caselaw; examine whether this doctrine might extend to protect nonbinary, GNC, and intersex students and their access to bathrooms consistent with their identities and preferences; and, as a result, begins filling this gap in the academic literature.

While the bathroom-access caselaw recognizes transgender students in only binary terms, the doctrine nevertheless leaves room for nonbinary, GNC, and intersex students to bring compelling Title IX claims. Under both the Grimm and Adams models, these students can invoke Bostock’s but-for logic and argue that their school’s exclusion of them from an appropriate bathroom facility discriminates against them “on the basis of sex”—even if neither model explicitly accounts for conceptions of sex or gender that sit outside of the binary.

* Zachary Kasdin is a J.D. Candidate (2024) at New York University School of Law. This Contribution is a commentary based on his problem in the Moot Court Board Casebook Vol. 47. The question presented in that problem is whether a school district assigning bathrooms based on “biological sex” violates Title IX of the Education Amendments of 1972.

1. See Linda Greenhouse, What Does ‘Sex’ Mean? The Supreme Court Answers, N.Y. Times (June 18, 2020), https://www.nytimes.com/2020/06/18/opinion/supreme-court-sex-discrimination.html?searchResultPosition=19.

2. 140 S. Ct. 1731, 1754 (2020).

3. Id. at 1779 (Alito, J., dissenting).

4. Id.

5. See Jessica A. Clarke, Sex Assigned at Birth, 122 Colum. L. Rev. 1821, 1878 (2022) (“On the issue of whether the Equal Protection Clause or Title IX requires that transgender schoolchildren can be permitted to use restrooms or changing facilities consistent with their gender identities, every federal court to consider the merits in the past five years has found in favor of the transgender plaintiffs.”). But see Kasper ex rel. Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 811 (11th Cir. 2022) (holding that a school district policy assigning bathroom facilities by “biological sex” did not violate Title IX).

6. See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 596 (4th Cir. 2020) (“Of course, there are other gender-expansive youth who may identify as nonbinary . . . [b]ut today’s question is limited to how school bathroom policies implicate the rights of transgender students who ‘consistently, persistently, and insistently’ express a binary gender.”), cert. denied, 141 S. Ct. 2878 (2021); see also Adams, 57 F.4th at 859 (Pryor, J., dissenting) (“This case has no bearing on the question how to assign gender fluid individuals to sex-separated bathrooms. . . .”).

7. See, e.g., Grimm, 972 F.3d at 618 (“Grimm does not challenge sex-separated restrooms; he challenges the Board’s discriminatory exclusion of himself from the sex-separated restroom matching his gender identity.”); Adams, 57 F.4th at 802 (involving the same challenges to the school board’s policy).

8. Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034, 1055 (7th Cir. 2017) (approvingly emphasizing the effect of such cases), abrogated on other grounds by Ill. Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020); see also Kyla Bender-Baird, Peeing under Surveillance: Gender, Policing, and Hate Violence, 23 Gender, Place and Culture 983, 984 (2016) (“[S]ex-segregated bathrooms are a technology of disciplinary power, upholding the gender binary by forcing people to choose between men’s and women’s rooms . . . [which] facilitates gender policing.”).

9. See, e.g., Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 893, 901–02 (2019) (“[N]onbinary gender is, in many ways, a misfit for legal categorization because nonbinary people defy categorization as a group. In resisting categorization, this minority casts new light on long-running debates on sex and gender regulation.”).

10. See Adam Liptak, Bathroom Bans for Transgender Youths Are Poised for Supreme Court Review, N.Y. Times (Jan. 23, 2023), https://www.nytimes.com/2023/01/23/us/politics/supreme-court-transgender-students-bathrooms.html?searchResultPosition=1.

11. See Clarke, supra note 9, at 898–99 (noting the rise in visibility of GNC identities).

12. Cannon v. Univ. of Chicago, 441 U.S. 677, 694–96 (1979) (discussing the history of Title IX).

13. 20 U.S.C. § 1681(a) (emphasis added).

14. Remy Tumin, Fifty Years On, Title IX’s Legacy Includes Its Durability, N.Y. Times (June 23, 2022), https://www.nytimes.com/2022/06/23/sports/title-ix-anniversary.html.

15. See Jessica A. Clarke, Sex Assigned at Birth, 122 Colum. L. Rev. 1821, 1878 n.329 (2022) (noting that, between 2017 and 2022, nearly every federal court to consider the merits of a transgender student’s Title IX bathroom usage claim has found in that student’s favor).

16. See, e.g., Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996) (outlining the elements of a Title IX claim in this context).

17. See Separation and Stigma: Transgender Youth & School Facilities, Movement Advancement Project (April 2017), https://www.lgbtmap.org/policy-and-issue-analysis/transgender-youth-school (compiling data on discrimination and bullying faced by transgender students in schools).

18. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 618 (4th Cir. 2020).

19. Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1049 (7th Cir. 2017), abrogated on other grounds by Ill. Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020).

20. Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020).

21. Id. at 1742.

22. See, e.g., Grimm, 972 F.3d at 616 (“[Because] the Board could not exclude [plaintiff] from the boys[’] bathroom without referencing his ‘biological gender’ . . . his sex [therefore] remains a but-for cause of the Board’s actions.”); B.E. v. Vigo Cnty. Sch. Corp., 608 F. Supp. 3d 725, 730 (S.D. Ind. 2022) (“It follows [from Bostock] . . . that Title IX . . . prohibits discrimination because of an individual’s transgender status.”); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 601 F. Supp. 3d 345, 356 (S.D. Ind. 2022) (“The overwhelming majority of federal courts . . . have . . . examined transgender education-discrimination claims under Title IX.”).

23. Editorial, For Transgender Americans, Legal Battles over Restrooms, N.Y. Times (July 27, 2015), https://www.nytimes.com/2015/07/27/opinion/for-transgender-americans-legal-battles-over-restrooms.html?searchResultPosition=18.

24. Grimm, 972 F.3d at 616 (“[Because] the Board could not exclude [plaintiff] from the boys[’] bathroom without referencing his ‘biological gender’ . . . his sex [therefore] remains a but-for cause of the Board’s actions.”).

25. Id. at 616–17.

26. 20 U.S.C. § 1681(a) (Title IX); 42 U.S.C. § 2000e-2(a)(1) (Title VII).

27. Olmstead v. L.C. ex rel. Zimring, 5272 U.S. 581, 616 n.1 (1999) (Thomas, J., dissenting). See also Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75 (1992) (applying Title VII’s conception of sexual harassment as sex discrimination to a Title IX claim); Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX.”).

28. See Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265 (2020) (analyzing the conflicting textualist theories underlying both the majority and dissenting opinions in Bostock).

29. Note that, even before Bostock, not all courts reviewed bathroom-access cases solely on gender-stereotyping grounds. See, e.g., Kasper ex rel. Adams v. Sch. Bd. of St. Johns Cnty., Fla., 318 F. Supp. 3d 1293, 1320–25 (M.D. Fla. 2018) (holding on textualist grounds that school board’s restriction of transgender boy plaintiff from the boys’ bathroom discriminates against him “on the basis of sex”), rev’d and remanded sub nom. 57 F.4th 791 (11th Cir. 2022).  

30. Grimm, 972 F.3d. at 618.

31. Id.

32. Id. at 619 (explaining how the category of “biological sex” referenced the sex listed on Grimm’s birth certificate).

33. M.C. ex rel. A.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760 (7th Cir. 2023).

34. See, e.g., A.C. by M.C., 601 F. Supp. 3d at 354  (“[Plaintiff] is seeking to use those facilities that already exist and align with his gender identity; his claim is solely that the School District is forbidding him from doing so.”); A.M. by E.M. v. Indianapolis Pub. Schs., 617 F. Supp. 3d 950, 965 (S.D. Ind. 2022) (“[I]t is a violation of Title IX for a public institution to discriminate against an individual [because of] their transgender status in the context . . . of using the bathroom of the sex with which he or she identifies.”); B.E. v. Vigo Cnty. Sch. Corp., 608 F. Supp. 3d 725, 730 (S.D. Ind. 2022) (“It follows [from Bostock] . . . that Title IX . . . prohibits discrimination because of an individual’s transgender status.”), aff’d, A.C., 75 F.4th 760.

35. See, e.g., Sam Parry, Note, Sex Trait Discrimination: Intersex People and Title VII After Bostock v. Clayton County, 97 Wash. L. Rev. 1149, 1167–70 (2022) (analyzing Bostock’s binary treatment of sex under Title VII).

36. Bostock, 140 S. Ct. at 1739 (emphasis added).

37. See, e.g., Chris Brickell, The Sociological Construction of Gender and Sexuality, 54 Socio. Rev. 87, 93–96 (2006) (surveying the social scientific and philosophical literature on the phenomenology of sex and gender).

38. See, e.g., C.E. Roselli, Neurobiology of Gender Identity and Sexual Orientation, J. Neuroendocrinology, July 11, 2018 (“[B]oth gender identity and sexual orientation are significantly influenced by events occurring during the [prenatal] early developmental period.”).

39. See also Adams, 57 F.4th at 859 n.29 (Pryor, J., dissenting) (rejecting the “assumption that sex is a single-factor label,” and instead emphasizing the degree to which gender factors into an umbrella understanding of sex).

40. Meredith Rolfs Severtson, Let’s Talk about Gender: Nonbinary Title VII Plaintiffs Post-Bostock, 74 Vand. L. Rev. 1507, 1509 (2021).

41. 57 F.4th at 814 (internal quotations omitted).

42. Id. at 811.

43. Id. at 813.

44. See John D. DeLamater & Janet Shibley Hyde, Essentialism vs. Social Constructionism in the Study of Human Sexuality, 35 J. Sex Rsch. 10, 10 (1998) (describing “modern essentialism” as “a belief that certain phenomena are natural, inevitable, universal, and biologically determined”).

45. B.P.J. v. W. Va. State Bd. of Educ., 649 F. Supp, 3d 220, 233 (S.D.W. Va. 2023) (advancing this logic in a school athletics context).

46. D.H. ex rel. A.H. v. Williamson Cnty. Bd. of Educ., 638 F. Supp. 3d 821, 836 (M.D. Tenn. 2022).

47. See A. Russell, Note, Bostock v. Clayton County: The Implications of a Binary Bias, 106 Cornell L. Rev. 1601, 1606 (2021) (“Despite making up about one third of the transgender population, gender nonbinary people remain largely unrepresented in both case law and legal scholarship.”).

48. See id. at 1607–08 (“Gender nonbinary legal rights may . . . require additional provisions simply not needed or demanded by binary transgender plaintiffs, such as the creation of a third-gender category, the elimination of unnecessary sex segregation, or the reasonable accommodation of nonbinary people within a binary system.”).

49. Kasper ex rel. Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 832 (11th Cir. 2022) (Pryor, J., dissenting).

50. Russell, supra note 47, at 1608.

51. Adams, 57 F.4th at 842 (Pryor, J., dissenting).

52. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 618 (4th Cir. 2020) (noting that Grimm’s school district treated him “[u]nlike the other boys . . . [because] he had to use either the girls[’] room or a single-stall option. In that sense, he was treated worse than similarly situated students”), cert. denied, 141 S. Ct. 2878 (2021).

53. Id.

54. Cf. Russell, supra note 47, at 1619 (identifying this same comparator-group difficulty within Bostock’s holding, noting that, “[a]s with nonbinary individuals, the Court’s but-for [causation] analysis does not work for bisexual people, whose sexual orientation and subsequent stigmatization are unaffected by a hypothetical change of sex”).

55. Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Educ., 858 F.3d 1034, 1049–50 (7th Cir. 2017).

56. Grimm, 972 F.3d at 618.

57. See 34 C.F.R. § 106.33 (2023) (interpreting Title IX to allow for “separate toilet, locker room, and shower facilities on the basis of sex” as long as those facilities remain “comparable” to one another).

58. See Russell, supra note 47, at 1623 (“[N]onbinary status, just like transgender status, inherently necessitates a consideration of sex; therefore, discrimination based on this trait likewise equally constitutes discrimination based on sex.”).

59. Adams, 57 F.4th at 812–13 (internal quotations omitted).

60. Id. at 813.

61. Id. at 814.

62. Id. at 842 (Pryor, J., dissenting); see also Russell, supra note 47, at 1604 (“[M]ultiple . . . biological characteristics play into what we understand as sex, including ‘genetic or chromosomal sex, gonadal sex, internal morphologic sex, genitalia, hormonal sex, phenotypic sex, assigned sex/gender of rearing, and self-identified sex.’”).

63. Adams, 57 F.4th at 857 (Pryor, J., dissenting) (internal quotations omitted).

64. Id. at 822 (Wilson, J., dissenting).

65. Shayna Medley, [Mis]interpreting Title IX: How Opponents of Transgender Equality are Twisting the Meaning of Sex Discrimination in School Sports, 45 N.Y.U. Rev. of L. & Soc. Change 673, 686 (2022).

66. Adams, 57 F.4th at 822 (Wilson, J., dissenting).

67. Cf. Paisley Currah, What Sex Does, New York Review of Books (May 27, 2022), https://www.nybooks.com/online/2022/05/27/what-sex-does/ (“[S]ex is not a thing, a property, or a trait, but the outcome of decisions backed by legal authority.”).

68. Jessica A. Clarke, Sex Assigned at Birth, 122 Colum. L. Rev. 1821, 1878 (2022).

69. Kasper ex rel. Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 817 (11th Cir. 2022).