The Supreme Court will not decide—at least not this term—whether transgender students have a right to use the bathroom consistent with their gender identity due to changes in position on this issue from the Obama to Trump administration.
Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex.
In a 2015 letter the Department of Education (DOE) interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. DOE and the Department of Justice reaffirmed this stance in a May 2016 “Dear Colleague” letter.
On February 22, 2017, DOE issued a “Dear Colleague” letter withdrawing the previous letters. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.
G.G. is transgender. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.
In November 2016 the Supreme Court agreed to decide two questions in Gloucester County School Board v. G.G. First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?
The Fourth Circuit ruled in favor of G.G. The court gave Auer deference to DOE’s letter.
Per Auer v. Robbins (1997) a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity.”
Despite the 2015 and 2016 letters being rescinded, both parties still wanted the Supreme Court to decide this case. As the parties pointed out, the second question—how to interpret the Title IX regulations regardless of DOE’s position—doesn’t depend on the views of either administration.
Nevertheless, the Supreme Court has sent this case back to the Fourth Circuit to rehear it in light of the new “Dear Colleague” letter. That ruling may again be to appealed to the Supreme Court.
It seems likely that sooner rather than later—and probably with the benefit of nine Justices—the Supreme Court will again be considering the question of the rights of transgender students.
Lisa Soronen, Executive Director
State & Local Legal Center