Amid a national background of litigation concerning the U.S. Department of Education’s directives involving the rights of transgender students, on October 28, 2016, the Supreme Court of the United States granted certiorari to review the prominent 4th Circuit Court of Appeals case G.G. v. Gloucester County Board of Education, 822 F.3d 709 (4th Cir. 2016). The case is expected to be decided before next summer and likely will shed some amount of light on this national issue.
The American Civil Liberties Union and ACLU of Virginia filed the underlying lawsuit on behalf of a transgender male student against the Gloucester County School Board (“Board”) in light of the Board’s adoption of a bathroom policy segregating transgender students from peers by requiring these students to use “alternative private” facilities. The Board maintained this policy even after receiving an opinion letter from the U.S. Department of Education explaining the Department’s position that Title IX of the Educational Amendments of 1972 requires that schools receiving federal funds permit transgender students to access intimate facilities (e.g., restrooms, locker rooms) based on their gender identities. The Department’s position that a student’s gender identity be treated as the student’s sex under Title IX was later reiterated by the issuance of the Dear Colleague Letter (“DCL”) of May 13, 2016. The DCL is at issue in several other cases around the country; however, this case focuses primarily on whether and to what degree the earlier opinion letter received by the Board is binding.
The Department of Education’s regulation about sex-segregated facilities, which appears at 34 C.F.R. 106.33, does not address its applicability to transgender students and is arguably ambiguous. Specifically, the regulation permits schools to provide separate restroom, locker room and shower facilities on the basis of “sex,” provided the facilities are comparable. Through its issuance of the DCL, the Department of Education has since interpreted the term “sex” as referring to a student’s gender identity, rather than his or her biological sex listed on his or her birth certificate. As a result, the Department of Education interprets the regulation to require schools to allow transgender students to access facilities consistent with their gender identities. Generally, courts are required to defer to an agency’s interpretation of its own regulations under the Auer doctrine, a precedential (and sometimes controversial) holding from the case of Auer v. Robbins, 529 U.S. 452 (1997). The Fourth Circuit Court of Appeals applied the Auer doctrine in G.G., in effect deferring to the Department of Education’s own interpretation of its regulations in the opinion letter. However, in August, the Supreme Court granted a stay pending the Court’s decision on the Board’s petition, meaning the Board’s policy will remain in place at least temporarily, and the student is unable to access the restroom corresponding with his gender identity until the Supreme Court renders a decision that would require otherwise.
Supreme Court Review
The Supreme Court announced last Friday that it will hear arguments on two of the three questions the Board included in its Petition for Writ of Certiorari for the Supreme Court of the United States to review the case.
The first question addresses whether and what degree of deference under Auer courts should apply to the opinion letter the Board received. The Board has submitted that the letter does not carry the force of law and was adopted during the pendency of the litigation. The second question is whether the Department of Education’s interpretation of Title IX should be given effect, with or without any deference.
Importantly, this case will not be the vehicle for overruling the Auer doctrine. Notably, the Supreme Court decided that it will not review an additional question posed by the Board in its petition, which asked whether the Court should continue to retain or instead overturn Auer. Because the Supreme Court will not review the propriety of the Auer doctrine at large, its review will essentially be limited to whether the Fourth Circuit properly applied Auer in this case or whether the Department of Education’s interpretation of the regulation in question is reasonable. While the Supreme Court will not be directly revisiting the Auer doctrine in this case, the opinion(s) of the Court and individual justices may provide insight as to the as to the applicability of the Department of Education’s interpretations of the laws it administers, as promulgated through informal guidance documents, and could foreshadow future review of Auer.
The outcome remains to be seen, but in the event of a 4-4 split at the Supreme Court, the 4th Circuit Court of Appeals’ order deferring to the Department of Education’s interpretation of its own regulations allowing transgender students equal access to intimate facilities that correspond with their respective gender identities will be reinstated, although the Supreme Court’s judgment will have no precedential effect.