Bathroom case brief: It’s not about gender

A Virginia school board this week asked the Supreme Court to hear its case concerning gender and bathrooms, but its legal strategy in the filing doesn’t focus on gender issues. Instead the board argues in its cert petition (the formal request for the court to take a case) that the court should hear the case in order to decide how much power federal officials have.

The legal doctrine the Gloucester County School Board raises is obscure but could have more reach than the dispute over access to bathrooms and locker rooms.

In January 2015, a Department of Education official sent a letter telling the Gloucester County School Board that under Title IX the board must treat transgender students “consistent with their gender identity” in locker rooms and bathrooms. A federal district court and the 4th U.S. Circuit Court of Appeals treated that letter as authoritative, ruling against the school board.

The school board argues in this appeal to the Supreme Court that the letter doesn’t have authority because it didn’t go through the regulatory process. The letter “is about as informal an agency document as one can imagine,” the board wrote. “The letter was not publicized; there is no evidence it was approved by the head of an agency; and it was signed only by a relatively low-level federal functionary.”

The school board’s petition urges the court to revisit the Auer doctrine, a legal doctrine under which courts defer to federal agencies’ interpretations of ambiguous regulations “unless that interpretation is plainly erroneous or inconsistent with the regulation.” The conservative justices on the court have regularly criticized the Auer doctrine.

“Auer deference effectively gives an agency the power to invade the province of both Congress and the courts in determining federal law on all kinds of issues of interest to all kinds of constituencies,” the board argues.

Title IX is the 1972 statute that prevents sex discrimination but allows schools to separate bathrooms and locker rooms “on the basis of sex.” The federal official in the letter to the school board said “sex” meant anyone’s gender identity, and the Obama administration in May sent a similar letter to all schools receiving federal funding, saying schools must allow students to use bathrooms based on their gender identity.

“That same strategy could easily be adopted by a future administration with radically different views,” the school board argues. “Indeed, it could be deployed to effectively amend in a different direction, and without any meaningful judicial review, not only Title IX, but also other federal statutes dealing with matters such as healthcare, the environment, labor relations, and financial-services regulation.”

Last week, a federal district judge in Texas put a halt to the Obama administration’s bathroom directive, ruling the federal government “bypassed” the normal regulatory process and that the agencies should not receive deference under the Auer doctrine. That ruling applied to all federally funded schools.

“These recent developments highlight the urgent need for this court to grant this petition,” the school board argues, referring to the Texas decision. The Virginia case is the first on this issue to reach the high court.

Thanks to a stay from the Supreme Court, the Virginia school board is not required to change its bathroom and locker room policies while the case is pending. Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor dissented from the stay. Justice Stephen Breyer said he voted for the stay “as a courtesy,” indicating he didn’t necessarily side with the conservative justices on the matter.

The school’s petition emphasizes it tried to accommodate Gavin Grimm (“G.G.” in the case documents), the student at the center of the case who was born a girl but now identifies as a boy and is undergoing hormone treatment.

The school began to allow Grimm to use the boys’ bathroom until parents complained. Then the board met and passed a resolution keeping the sexes separate in locker rooms and bathrooms, but agreeing to build additional single-stall unisex bathrooms that would be open to all students. Grimm said the unisex bathrooms “make me feel even more stigmatized and isolated” and later filed a lawsuit against the school board.

“At bottom, then, this case is not really about whether G.G. should be allowed to access the boys’ restrooms,” the school board concluded. “Fundamentally, this case is about whether an agency employee can impose that policy in a piece of private correspondence. If the court looks the other way, then the agency officials in this case—and in a host of others to come—will have become a law unto themselves.”