Va. School District Asks U.S. Supreme Court to Fully Take Up Transgender Case

By Mark Walsh — August 30, 2016 3 min read
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A Virginia school district on Monday formally filed an appeal asking the U.S. Supreme Court to clarify whether schools must allow transgender students to use the restrooms corresponding to their gender identity.

“This case provides an excellent vehicle for determining whether the [U.S.] Department [of Education]'s understanding of Title IX reflected in [recent interpretation] letters must be given effect—thereby resolving once and for all the current nationwide controversy generated by these directives,” the Gloucester County district says in its appeal.

The district filed its appeal just weeks after it won a stay from the justices of a lower-court injunction that would have allowed a 17-year-old transgender student, Gavin Grimm, to use the boys’ restroom at his high school beginning in September.

The district also met its Aug. 29 target date for filing the appeal after asking Chief Justice John G. Roberts Jr. for an extra month—and getting a swift rejection from Roberts.

On the merits of the high-profile case, the school district said a federal appeals court had erred by giving deference to a U.S. Department of Education interpretation last year of its own regulations under Title IX of the Education Amendments of 1972. That statute bars sex discrimination in federally funded schools, and the department issued a regulation in 1975 that made clear that schools could maintain separate restrooms and locker rooms for boys and girls.

The department’s more recent interpretation of that rule is that schools must allow transgender students to use the restrooms and locker rooms corresponding to their gender identity. The interpretation was provided to the Gloucester County school system in the Grimm case by what the district calls “a relatively low-level official"—James Ferg-Cadima, who was the acting deputy assistant secretary for policy in the Education Department’s office for civil rights.

The letter was “never subjected to notice and comment” under the Administrative Procedure Act, the district notes. The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., held this past April that the letter merited deference under a 1997 Supreme Court decision, Auer v. Robbins, which says that a federal agency’s interpretation of its own ambiguous regulation should be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute at issue. (I explored this issue more closely here.)

In May, the federal Departments of Education and Justice issued a “Dear Colleague” letter that clarified, in somewhat broader terms, the federal interpretation that transgender students should be allowed to use restrooms corresponding to their gender identity. That guidance was temporarily blocked this month by a federal judge ruling in a challenge brought by Texas and 10 other states.

In its appeal in Gloucester County School Board v. G.G., the school district acknowledges the significance of the debate over transgender rights, but seeks to appeal to the interest expressed by some justices in reconsidering certain principles of administrative law, particularly the Auer decision.

“Some regard transgender restroom access as one of the great civil-rights issues of our time,” the appeal says. “But that makes it all the more important to insist that federal officials follow the procedures for lawmaking prescribed in the Constitution and the Administrative Procedure Act.”

“At bottom, then, this case is not really about whether [Grimm] should be allowed to access the boys’ restrooms, nor even primarily about whether Title IX can be interpreted to require recipients to allow transgender students into the restrooms and locker rooms that accord with their gender identity,” the appeal continues. “Fundamentally, this case is about whether an agency employee can impose that policy in a piece of private correspondence. If the court looks the other way, then the agency officials in this case—and in a host of others to come—will have become a law unto themselves.”

Lawyers for Grimm will have 30 days to respond to the appeal, and the justices will decide sometime this fall whether to take up the case in the term that begins Oct. 3.

A version of this news article first appeared in The School Law Blog.