Urging the Justices to resolve the dispute over the use of school bathrooms by trangender students “once and for all,” today a Virginia school board asked the Supreme Court to examine a decision by a federal appeals court in favor of a transgender student who identifies as a boy and wants to be allowed to use the boys’ bathroom. In June, a federal trial court ordered the school board to permit the student, “G.G.”, to use the boys’ bathrooms at Gloucester High School when school begins next month. But the Supreme Court stepped in and put that ruling on hold, over the protests of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, to give the school board time to file a petition seeking review on the merits. The board filed that petition today.

As I explained in my earlier post, the dispute dates back to 2014, when the school agreed to allow G.G. to use the boys’ restroom. But doing so generated complaints from students and parents, which prompted the school board to adopt a policy that would require students to use only the restrooms and locker rooms that correspond with the gender that they were assigned at birth.

G.G. went to federal court, where he argued that the school board’s policy violated both the Constitution’s guarantee of equal protection under the laws and Title IX, a federal law that bars sex discrimination in education. He lost in a federal trial court but prevailed on appeal. A divided panel of the U.S. Court of Appeals for the Fourth Circuit relied on a January 7, 2015, opinion letter from the Department of Education’s Office of Civil Rights, which had been issued in response to a request made a few days after the board adopted its restroom policy. The letter indicated that, if schools choose to separate students in restrooms and locker rooms on the basis of their sex, “a school generally must treat transgender students consistent with their gender identity.” And the court of appeals concluded that courts should follow that interpretation under a doctrine known as “Auer deference,” which allows courts to defer to an agency’s interpretation of its own regulation as long as the interpretation is neither ambiguous nor plainly erroneous and is the result of the agency’s “fair and considered judgment on the matter in question.”

Although the case has its roots in the sometimes controversial issue of the use of bathrooms by transgender students, the board’s petition tries to characterize that question as merely a backdrop to the broader and more technical issue of Auer deference, along with the need to rein in unaccountable federal bureaucrats. Thus, the board tells the Supreme Court that the case “is not really about whether G.G. should be allowed to access the boys’ restroom, nor even primarily about whether Title IX can be interpreted to require recipients to allow transgender students into” restrooms and locker rooms. Rather, the board contends, at its core “this case is about whether an agency employee can impose that policy in a piece of private correspondence.”

Supreme Court review is warranted, the school board argues, because the Fourth Circuit’s decision conflicts with the decisions of other federal courts of appeals on the question whether “Auer deference can apply at all to informal agency pronouncements” like the January 2015 letter, which was not made available for public review or comments and was signed only by a “relatively low-level official.”

Moreover, the school board adds, the Fourth Circuit’s ruling is also in “substantial tension” with decisions from two other federal courts of appeals, which have declined to apply Auer deference when – as here – the agency adopts an interpretation “solely in the context of the dispute before the court.”

Finally, the school board notes, in the wake of the Fourth Circuit’s decision, officials in the Department of Justice issued a letter to educational institutions that receive federal funding. The “Dear Colleague” letter indicated that schools should (among other things) allow transgender students to use restrooms, locker rooms, and showers “consistent with his or her gender identity.” Texas and a dozen other states challenged the guidelines in federal court, and earlier this month a federal district judge blocked the policies from being implemented throughout the nation. That ruling, the school board suggests, “highlights the urgent, nationwide importance of the issues presented in this” case. Unless and until the Supreme Court steps in, the school board cautions, different schools throughout the country will be subject to different obligations, based solely on whether they are in the Fourth Circuit (where states “are now bound by the Department’s view of Title IX”) or elsewhere in the country and therefore bound by the Texas district court’s ruling.

The response to the school board’s petition from G.G. and his lawyers is due in thirty days; the Court will likely announce this fall whether it will grant review.

Recommended Citation: Amy Howe, School board files petition for review on transgender bathrooms, SCOTUSblog (Aug. 29, 2016, 11:18 PM), https://www.scotusblog.com/2016/08/school-board-files-petition-for-review-on-transgender-bathrooms/