The U.S. Supreme Court has agreed to hear oral argument in one of the high-profile challenges to the legality of the Dear Colleague Letter (“DCL”) jointly issued by the U.S. Departments of Justice and Education on May 13, 2016, announcing the Departments would “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Gloucester County School Board v. G.G., 822 F.3d 709 (4th Cir. 2016), cert. granted (U.S. Oct. 28, 2016) (No. 16-273).
BackgroundThe DCL offered guidance on a range of issues, including access to restrooms, locker rooms, and similar facilities, equal protection in educational programs and activities, and recordkeeping, and privacy. (See our article, U.S. Departments of Justice and Education Issue ‘Significant Guidance’ on Transgender Rights under Title IX.) The U.S. Equal Employment Opportunities Commission has applied the same standards under Title VII.
In this case, a transgender male student challenged under Title IX the school’s policy barring him from using the boy’s bathroom. The U.S. Court of Appeals for the Fourth Circuit, in Richmond, relied on the DCL to find that Title IX was ambiguous as applied to transgender students, and the court should give deference to the federal agencies’ interpretation pursuant to Auer v. Robinson, 519 U.S. 452 (1997). (Auer was recently criticized by conservative Justices on the Supreme Court.) Auer held that courts should defer to an agency’s interpretation as controlling so long as it is not “plainly erroneous or inconsistent with the regulation.” Based on Auer, the Fourth Circuit ruled the student should be permitted to use the restroom associated with his gender identity.
Petition to CourtOn August 3, the Supreme Court voted 5-to-3 to temporarily stay the order from the Fourth Circuit while it decided whether to accept an appeal from the defendant school board.
In its August 29 petition, the School Board requested review of three questions: (1) whether the Court should retain the Auer doctrine applied by the Fourth Circuit; (2) if Auer is retained, whether deference should extend to an unpublished agency letter, like the DCL, that does not carry the force of law and was adopted in the context of the dispute in which deference is sought; and (3) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and related regulations should be given effect.
The Court agreed to review only the second and third questions, signaling it does not wish to revisit the Auer standard at this time. Oral argument is expected in the Court’s February 2016 sitting, which begins on February 21.
Other Notable Cases Addressing Title IX and Transgender StudentsA ruling from the Supreme Court will be a step toward addressing the split of authority on Title IX’s application to transgender students.
Texas Injunction Update
In August, a Texas federal court issued a nationwide injunction against enforcement of the guidance contained in the DCL. (See our article, Court Decisions Could Frustrate Obama Administration’s Efforts to Protect Transgender Students, Employees.)
On October 18, in response to the plaintiffs’ motion for clarification, the court issued an order reaffirming the injunction is nationwide, but that the injunction does not affect litigation that had been “substantially...
