–by Joseph Railey
Citations: Gloucester Cty. Sch. Bd. v. G.G., 2017 WL 855755 (U.S. 2017); Chevron USA v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Auer v. Robbins, 519 U.S. 452 (1997); G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016); U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on Transgender Students (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf; Gavin Grimm, Gavin Grimm: The Fight for Transgender Rights is Bigger than Me, N.Y. Times (March 7, 2017), https://www.nytimes.com/2017/03/07/opinion/gavin-grimm-the-fight-for-transgender-rights-is-bigger-than-me.html?_r=0.
Abstract: A transgender male in Virginia sued his high school for denying him access to the facilities that correspond to his gender identity. The Fourth Circuit ruled that the transgender student should be granted access to the men’s restroom. On March 6, 2017, the U.S. Supreme Court vacated and remanded the case.
***
On March 6, 2017, the Supreme Court vacated and remanded Gloucester County School Board. v. G.G. to the Fourth Circuit. Gloucester County deals with the rights of transgender students in public schools to use the restroom facilities that correspond to their gender identity.
In May 2016, The Departments of Education and Justice issued a joint memorandum to all public schools. That memo directed schools to treat a student’s gender identity (the way the student sees and identifies him or herself) as the student’s sex for Title IX purpose. Thus, under the guidance, a school must allow a transgender male to use a men’s restroom and a transgender female to use a women’s restroom.
Based on this guidance, Gavin Grimm, a transgender male high school student in Gloucester County, Virginia who was born female but identifies as male, was allowed to use the men’s restroom in his high school. Subsequently, a number of parents in the community successfully petitioned the school board to require Grimm to use unisex bathrooms. Grimm sued his school alleging that the school board’s decision violated both Title IX and his constitutional right to equal protection. The District Court dismissed Grimm’s complaint.
On appeal, the Fourth Circuit reversed the District Court and vacated the denial of a preliminary injunction (to allow Grimm access to the men’s restroom while the suit proceeded). In reaching this conclusion, the Fourth Circuit relied on: (1) a jointly issued May 2016 Department of Education and Department of Justice memo; (2) U.S. Supreme Court precedent in Chevron U.S.A. v. Natural Resources Defense Council, Inc. and Auer v. Robbins; and (3) the ambiguity in Title IX as to the meaning of “sex.”
The 2016 memo unequivocally stated that for purposes of Title IX a student’s gender identity was treated as their sex. The court felt this interpretation was reasonable, and determined that deference should be given to the memo in deciding the case. Based on that deference, the court held that it was impermissible to deny Grimm access to the men’s restroom because of his status as a transgender male.
The court also determined that Chevron and Auer controlled. Chevron provides that courts should defer to administrative agencies such as the Department of Justice and Department of Education. “Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.”
As the memo provided an interpretation from an agency tasked with enforcing an ambiguous Title IX statute, the Court held that because Grimm identified as a male, he had a right to use the men’s restroom.
In October 2016, the U.S. Supreme Court granted certiorari in Grimm’s case and scheduled it for arguments at the end of March 2017. Upon taking office, President Trump, U.S. Attorney General Jeff Sessions, and U.S. Secretary of Education Betsy DeVos issued a guidance document that rescinded the 2016 memo on transgender students. The Court then rescinded certiorari stating, “[t]he judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.” As such, the case has now been sent back to the Fourth Circuit for further action.