Warning of “severe disruption,” including the possibility that some parents might withdraw their children from school if a federal district court’s order mandating that a transgender student who identifies as a boy be allowed to use the boys’ restroom takes effect, a Virginia school board today asked the U.S. Supreme Court to put both the district court’s order and an earlier ruling by a federal appeals court on hold. Promising to file a petition for review by August 29, the Gloucester County School Board urged the Court to “restore the status quo” until the Court can weigh in on the case.
The plaintiff in the case is “G.G.,” a seventeen-year-old student at Gloucester High School who was assigned the identity of a girl at birth but now identifies as a boy. In October 2014, the school principal began to allow G.G. to use the boys’ bathroom. But after complaints from parents and students, the county school board enacted a policy that requires students to use the restrooms and locker rooms that match their genders as assigned at birth. The policy also indicated that “students with gender identity issues shall be provided an alternative appropriate facility.”
In June of last year, G.G. challenged the policy in a federal district court in Virginia, alleging that it violated both the Constitution’s guarantee of equal protection under the laws and Title IX, a federal civil rights law that prohibits sex discrimination in education. Without ruling on G.G.’s constitutional claim, the district court initially rejected G.G.’s Title IX claim, holding that it was barred by a 1975 regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex.
On appeal, a divided panel of the U.S. Court of Appeals for the Fourth Circuit reversed. It pointed to a newer January 7, 2015, opinion letter from the Department of Education’s Office of Civil Rights which concluded that, if schools opt 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.” While acknowledging that the Department of Education’s new interpretation of the 1975 regulation was “novel,” it concluded that the interpretation was still entitled to deference. It relied on 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.”
Here, the Fourth Circuit reasoned, the 1975 regulation is “ambiguous” because it did not address “how a school should determine whether a transgender individual is a male or a female for the purpose of access to sex-segregated restrooms.” The department’s interpretation of that regulation, the Fourth Circuit had concluded, “resolves” that ambiguity by defining the “sex” of a transgender student in terms of the student’s gender identity. That interpretation is not “plainly erroneous,” the court of appeals continued; it has also been enforced since 2014 and is “in line with the existing guidances and regulations of a number of federal agencies.”
After the Fourth Circuit declined to stay its ruling, the case went back to the district court, which last month issued a preliminary injunction requiring the school board to allow G.G. to use the boys’ restroom while the case is litigated on the merits. The Fourth Circuit then rejected the school board’s request to halt that ruling while the board asked the Supreme Court to weigh in.
In today’s filing, the school board characterized the Fourth Circuit’s ruling as “one of the most extreme examples of judicial deference to an administrative agency this Court will ever see.” It argued that the case meets each of the criteria for putting a lower-court decision on hold. There is, the school board contended, both a “reasonable probability” that at least four Justices will vote to grant review and a “fair prospect” that the decision below will be reversed. There are several different divisions among the courts of appeals – often a key factor in the Court’s decision whether to grant review – over when and whether courts should defer to an agency’s interpretation of a regulation. Moreover, the school board noted, three current members of the Court – Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas – have recently “expressed increasing interest” in the question whether the Court should reconsider the doctrine of Auer deference. (Antonin Scalia, who was both the author of the Court’s opinion in Auer v. Robbins and perhaps the most outspoken advocate for reconsidering it, passed away earlier this year.) And, the school board added, even if the Justices are not yet ready to overturn their 1997 ruling in Auer, this case is such an outlier that they are “nonetheless likely to overturn the Fourth Circuit’s application of Auer in this case.”
It is also likely, the school board concluded, that “irreparable harm will result” if the lower-court decisions are allowed to go into effect, because the Gloucester County School Board will have to decide how to deal with the rulings by the time the new school year starts on September 6. And in the wake of a May 2016 letter from the federal Departments of Education and Justice, the school board insisted, school boards all over the country “must now contemplate whether they must change their policies and alter their facilities, or else be found out of compliance with Title IX and therefore at risk of losing all federal funds.” By contrast, the board maintained, G.G. can’t credibly argue that he will be substantially harmed if the lower-court rulings are put on hold: he had previously agreed to use a separate restroom in the nurse’s office, and – consistent with the school board’s new policy – he now has access to three single-stall user restrooms, which are open to all students.
The school board’s request goes to Chief Justice John Roberts, who is responsible for emergency appeals from Maryland, Virginia, West Virginia, and the Carolinas. He can act on the request on his own or – as is more likely – refer it to the full Court. The school board needs the votes of at least five Justices to halt the lower-court rulings.
[This post is cross-posted at SCOTUSblog.]