Last Friday the U.S. Supreme Court agreed to review the U.S. Court of Appeals for the Fourth Circuit’s decision in Gloucester County School Board v. G.G. As I explained in a previous Legal Update, the case involves a Virginia high school student who is making a partial transition from female to male (i.e., a change of name and clothing and the initiation of hormone therapy but no surgical changes). In an attempt to accommodate G.G. while also respecting the privacy concerns expressed by other students and their parents, Gloucester High School built several unisex bathrooms “for use by all students regardless of biological sex or gender identity.” Rather than accept this compromise, G.G. filed a lawsuit in which he claimed he had a right to use the boys’ bathrooms under federal law.
G.G.’s claim rested on a letter from the U.S. Department of Education’s (DOE) Office of Civil Rights stating:
When a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.
When the case reached the Fourth Circuit, the Court found in G.G.’s favor. It held that the letter from the DOE should be given “controlling weight” because it represented “the Department’s interpretation of its own regulation.”
The Supreme Court has agreed to consider two questions pertaining to that holding, both of which were raised by the School Board in its petition:
(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and
(2) [W]hether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
The outcome will have important implications for North Carolina, and for the many other states that are challenging bathroom policy directives issued by the Obama administration, but there is much more at stake than merely which students get to use which bathrooms. As Bryan Jacoutot points out at the Legal Insurrection blog:
Despite the manner in which every major news outlet will likely cast this dispute; the question the Supreme Court will consider is not whether transgender individuals have a right to use the bathroom of their choice. Rather, the question is whether a President, acting through his administrative agencies, has the authority [to] unilaterally rewrite longstanding laws and regulations.
Mr. Jacoutot is right. The Fourth Circuit deferred to the DOE letter because it assumed that the agency was simply interpreting its own ambiguous regulation, but that’s not what the DOE was doing. When it said, “A school generally must treat transgender students consistent with their gender identity,” the DOE was making new law.
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
And it goes on to state that:
Nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act from maintaining separate living facilities for the different sexes.
This might leave some ambiguity about whether toilets, locker rooms, shower rooms, and so forth are “living facilities” within the meaning of the act, but any ambiguity was resolved by a regulation promulgated when Title IX was implemented that states:
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
In 1972, when Title IX and the accompanying regulations were written, “sex” meant “biological sex” and not “gender identity.” Not only was the latter not a phrase in common use at the time, only a handful of people were even aware of the concept. Moreover, even after the phrase came into common use and the concept began to be widely understood, everybody continued to recognize that, as far as federal anti-discrimination laws are concerned, “sex” means “biological sex.” That’s why, in almost every session of Congress since 1994, bills have been introduced to ban discrimination on the basis of sexual orientation and gender identity.
Much to the frustration of LBGT advocates, none of those bills passed, which is, no doubt, why the Obama administration decided to change the law without waiting for Congress. Under the Constitution, however, the President can’t simply change the law by diktat whenever he wants to. You’d think a former constitutional law professor would know that!