Background and Ruling

In December 2023, we filed with the Ninth Circuit amicus briefing, arguing that Idaho’s single-sex bathroom law was consistent with Title IX.  We argued that Title IX bans only sex discrimination–unless it’s sex discrimination, Title IX doesn’t ban it.  We noted that Title IX excludes from its prohibition recipients’ maintenance of separate “living facilities.”  We argued that Title IX’s original regulations interpreted “living facilities” to include “toilet, locker room, and shower facilities.”  We noted that even the courts holding Title IX to forbid the maintenance of sex-separated bathrooms have dodged the original regulations, rather than invalidating them.  And we observed that unless that regulation were proper, the statute would have forbidden all separate-sex bathrooms since 1972.

The Court of Appeals (Mostly) Agrees

This week, the Court of Appeals ruled on the case.  Like the district court, it unanimously rejected the plaintiffs’ entitlement to injunctive relief.  In fact, the 9th Circuit effectively–if half-heartedly due to a caveat–adopted our reasoning.

The judges focused on case-law’s requirement that spending-clause legislation applications must clearly appear on the face of the statute.  They agreed that “…from the time of the enactment of Title IX and its implementing regulations, the scheme has authorized schools to maintain sex-segregated facilities[.]”  They even “emphasize[d] that this is an unusual instance in which the statute in question appears to affirmatively authorize conduct the funding recipient engaged in, not merely a case in which the scope of conduct proscribed by the statute is uncertain.”  But then they refined the question through the observation that “this is an instance in which liability does not arise under Title IX unless the challenged conditions were set out ‘unambiguously.'”

They did not go as far as they could–and should–have in recognizing the regulation’s status as an application of the relevant statutory exception.  They nonetheless did “not conclude that [it] unambiguously carves out only [dorms] from Title IX’s general mandate and not more intimate spaces such as restrooms, changing rooms, and communal showers.”  They suggested, instead, that the “absence of an express reference to restrooms, locker rooms, and shower rooms in [Section] 1686 much more likely reflects the fact that in 1972 the separation of these facilities on the basis of sex was so assumed that it did not merit special mention in the text of the statute.”

Two Cheers

So they grounded their ruling in the absence of clarity to the contrary, rather than in the strength of the affirmative.  Still, the Court of Appeals denied injunctive relief, leaving Idaho’s school bathroom statute standing.  So two cheers for the Ninth Circuit.  Its opinion puts it (less thoroughly, but clearly) on the correct side of the entrenched Circuit split over the correct reading of Title IX (effectively with the 11th Circuit, against the 4th and 7th Circuits).