By Mark Walsh. Cross posted from the School Law Blog.
The U.S. Supreme Court on Friday granted the appeal of a Virginia school district seeking clarification of whether schools must allow transgender students to use the restrooms corresponding to their gender identity.
The court’s action in Gloucester County School Board v. G.G. (Case No. 16-273) sets up a high-stakes battle over the rights of transgender students in schools and the authority of the U.S. Department of Education to issue broad interpretations of its regulations.
The high court had intervened in the case over the summer to grant a stay to the Gloucester County school district, which had temporarily blocked a lower-court injunction that would have allowed a 17-year-old transgender student, Gavin Grimm, who was born a girl but now identifies as a boy, to use the boys’ restroom at his high school.
Five justices had granted the stay in August, with Justice Stephen G. Breyer voting with the court’s conservative bloc “as a courtesy” because the court was in its summer recess and to preserve the status quo, he wrote in a concurrence.
It takes only four justices to grant full review of a case, so the conservatives did not need Breyer’s vote to grant the school district’s appeal of a federal appeals court ruling that sided with the student. But the court remains short one member since the death of Justice Antonin Scalia in February and the political gridlock over President Barack Obama’s nomination of Merrick H. Garland for the seat. So the justices risk deadlocking on the merits of the case, which would uphold a lower-court decision in favor of Grimm.
The school district had appealed the decision this past April by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that guidance on transgender students merited deference under a 1997 Supreme Court decision, Auer v. Robbins. That decision 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.
The 4th Circuit court had ruled based on a letter from a January 2015 Education Department official to the Gloucester County district. (The letter is in the appendix, at Page 121A, of the school district’s petition for writ of certiorari.)
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 in August by a federal district judge ruling in a challenge brought by Texas and other states.
The Supreme Court’s decision to take up the Gloucester County school district’s appeal will keep in place the stay of lower-court rulings that the district had to allow Grimm to use the restrooms corresponding to his gender identity.
In a statement, Troy Andersen, the president of the Gloucester County school board, said, “We are grateful that the Supreme Court has granted the school board’s petition in this difficult case. The board looks forward to explaining to the court that its restroom and locker room policy carefully balances the interests of all students and parents in the Gloucester County school system.”
In an op-ed essay in The Washington Post on Friday, Grimm wrote that he never imagined that the Supreme Court might be deciding whether he could use the school restroom. Under a policy adopted by the Gloucester County school board, and in force under the Supreme Court’s stay, Grimm uses a single unisex restroom or a nurse’s office restroom at Gloucester High School.
“I continue to suffer daily because of the school board’s decision to make my bathroom use a matter of public debate,” Grimm wrote. “I feel the humiliation every time I need to use the restroom and every minute I try to ‘hold it’ in the hopes of avoiding the long walk to the nurse’s office.”
“What keeps me going is the knowledge that I am not the only transgender student out there, and I have the chance to make things better so other transgender kids do not have to go through what I am going through,” Grimm wrote.
In a statement, Josh Block, a senior staff attorney with the American Civil Liberties Union’s LGBT project, which is representing Grimm and had urged the court not to take up the case, said “it is disappointing that Gavin will probably have to finish out his high school career under this harmful, humiliating policy.”
In a short order on Friday, the Supreme Court said it would not take up the first question posed in the school district’s appeal, “Should this court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled?”
The court said it would consider these two questions:
“If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?”
And “with or without deference to the agency, should the department’s specific interpretation of Title IX and [its regulation] be given effect?”
Those questions still give the justices much running room that, in the real world, will have an impact on transgender rights and beyond.
Arguments in the case are likely early next year.
A version of this news article first appeared in the Rules for Engagement blog.