Saturday, October 29, 2016

Supreme Court Grants Cert in Title IX Transgender Bathroom Case

Yesterday the Supreme Court partially granted the Gloucester school district's petition for certiorari to review the appellate court's decision that a transgender student had the right to use the bathroom according to his gender identity:

As you can see from the order, the Supreme Court's order limited its review to two questions raised by the school district's petition.  There were three questions on which the school district sought review in its cert petition:

By refusing to grant certiorari on question 1, the Supreme Court has confirmed that it will not use this case to overrule the Auer doctrine. Under Auer, courts must defer to an agency's interpretation of its own ambiguous regulations. In the decision below, the Fourth Circuit relied on heavily on Auer in determining that the transgender student plaintiff could access the boys' bathrooms at his high school. This is because the Department of Education, which enforces Title IX, has a regulation about bathrooms (it permits schools to separate bathrooms and certain other facilities by sex) but that regulation is silent about its application to transgender students. The Department has since interpreted that regulation to resolve that ambiguity to require schools to permit transgender students to access bathrooms consistent with their gender identities. As an interpretation of an ambiguous regulation, the Fourth Circuit determined, the court deferred to the agency's position on the matter.  It did not pass judgment on the agency's position; it simply recognized that the agency is the proper body to make that call.

In denying cert on the question of whether Auer deference is proper, the Court has made it considerably harder for the school district to prevail. It will only examine whether the Fourth Circuit properly applied that doctrine in this case.  Notably, most of the school district's arguments that it did not target the fact that the agency's interpretation was contained in a limited-purpose opinion letter and was arguably not meant to have broad application. Since that time. the agency has promulgated a broadly applicable guidance document on this issue. Even if it was improper for the Fourth Circuit to have deferred to that opinion letter, it is not necessarily improper for other courts in future cases to defer to the guidance document.

Additionally, it is worth noting that the Supreme Court presently has only 8 justices. The vacancy left by the death of Justice Scalia will not be filled before this case is argued sometime this winter or spring. I can think of three Justices who are likely to be sympathetic to the school district's arguments.  But they would have to get two more to the join them for the school district to win, because a 4-4 tie leaves the Fourth Circuit's decision in tact.

Finally, for some historical context, the Supreme Court has decided Title IX cases 8 times in its history. In all but one of those cases, it ruled in favor of the party seeking to challenge discrimination and advance civil rights.