Supreme Court to tackle transgender restroom case

For the first time the Supreme Court will wade into the debate over gender and restrooms, adding a blockbuster case to an otherwise sleepy term. The court announced Friday afternoon in a “miscellaneous order” that it would hear the appeal from a Virginia school board over the federal directive on transgender restroom and locker room use in public schools.

The Virginia case began when Gavin Grimm (“G.G.” in court documents), who was born female but now identifies as male, sued the school board after requesting access to the boys’ restrooms and locker rooms. Fielding parental complaints, the board declined Grimm’s request, but offered to build unisex restrooms instead. Grimm considered that response discrimination.

A federal District Court and the 4th U.S. Circuit Court of Appeals ruled against the school board, but then the Supreme Court issued a stay on those rulings. The stay allowed the school to continue with the restroom and locker room status quo, separating the sexes, until the Supreme Court resolves the issue.

The case might focus on federal bureaucratic power rather than transgender restroom usage. 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 restrooms. The agency sent a directive similar to the Gloucester County letter to all federally funded schools in May.

The Virginia school board argued to the Supreme Court that the letter was an overreach of federal power.

“Fundamentally, this case is about whether an agency employee can impose that policy in a piece of private correspondence,” the board’s lawyer, Kyle Duncan, wrote in the appeal to the high court. “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.”

When the court grants cases it agrees to consider specific questions, and in this case it will consider two: First, whether courts should defer to “an unpublished agency letter that, among other things, does not carry the force of law,” and second, whether the Department of Education correctly interpreted Title IX in its directive. Title IX, which prohibits sex discrimination in federally funded schools, has an exemption allowing schools to separate boys and girls in locker rooms and restrooms. The federal directive to schools interprets “sex” to mean “gender identity.”

The Auer doctrine is the legal framework courts use to consider these types of bureaucratic disputes. Under Auer, courts defer to federal agencies’ interpretations of ambiguous regulations “unless that interpretation is plainly erroneous or inconsistent with the regulation.”

Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor dissented from the Supreme Court’s stay of the lower court ruling, which might indicate where those three stand on this issue already. This presents an interesting case for Justice Anthony Kennedy, who relishes his role as the author of many gay-rights decisions, but also has fits of libertarianism in which he objects to overreaches of federal power.

The court will likely hear the case sometime after Christmas.