By Michael A. Kornbluth

On March 6, 2017, the Supreme Court remanded a case about a transgender boy’s right to use the bathroom associated with his gender identity. Gavin Grimm, a transgender boy, wanted to use the boys’ restroom at his high school. After Gavin had been using the boys’ restroom for seven weeks with the school’s permission, the local school board passed a policy that banned Gavin Grimm from using the boys’ restroom. Gavin Grimm filed for an injunction to use the bathroom based on his gender identity.

The U.S. District Court for the Eastern District of Virginia, 122 F. Supp. 3d 736 (2015), dismissed Grimm’s Title IX claim. On appeal, the primary issue for the 4th Circuit was whether Title IX requires schools to provide transgender students restroom access that comports with the student’s gender identity as stated in 34 CFR 106.33. G.G. v. Gloucester County School Board, 822 F.3d 719 (2016).   The regulation permits the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” On Jan. 7, 2015, the Department of Education’s Office for Civil Rights interpreted 34 C.F.R. 106.33 as requiring that if a school treats students differently due to their sex, the school must also treat transgender students consistent with their identity.

The 4th Circuit determined that the Auer doctrine should apply and that the Agency’s interpretation of 34 C.F.R. 106.33 should be given deference, because the regulation was ambiguous as applied to transgender individuals and it was the result of the agency’s fair and considered judgment. Id. at 721-722. The Auer doctrine, Auer v. Robbins, 519 U.S. 425 (1997), gives deference to the federal agencies in interpreting their own regulations unless the interpretation is clearly erroneous or inconsistent with the regulation. The deference does not apply when “the interpretation conflicts with a prior interpretation, when it appears that the interpretation is no more than a convenient litigation position, or when the interpretation is a post hoc rationalization.” Gloucester County School Board, 822 F.3d at 719 citing Christopher v. SmithKline Beacham Corp., 567 U.S. ___ (2012).  The 4th Circuit held that schools must treat transgender students consistent with their gender identity if there are sex-segregated bathrooms.

On March 6, 2017, the Supreme Court vacated the 4th Circuit’s opinion in Gloucester County School Board v. G.G. The questions presented to the Court were:

  1. Should the Supreme Court retain the Auer doctrine?
  2. If Auer is retained, what deference should extend to the Department of Education agency letter?
  3. Regardless of agency deference, should the Department of Education’s interpretation of Title IX and 34 CFR 106.33 be given effect?

The Supreme Court remanded the case to the 4th Circuit in light of the Feb. 22, 2017 guidance document issued by the Department of Education and Department of Justice. The Trump administration retracted the Jan. 7, 2015 letter noted above, as well as the directive by the Obama administration instructing public schools nationwide to let transgender students use bathrooms matching their gender identity or risk losing federal funding.

This leaves the issue of whether Title IX covers transgender students unresolved by the Supreme Court. Of course, this means that HB-2 is more unsettled today than yesterday. It also brings into greater focus the Auer and sister-doctrine, Chevron, and the impact of new policies/politicization of administrative interpretations, especially at a time that Chevron-Auer, as well as the administrative agencies are under attack by the current Congress and current administration. Stay tuned.