On October 28, 2016, the United States Supreme Court agreed to hear arguments in the case of Gloucester County School Board v. G.G., the Virginia case involving a transgender student who identifies as a boy and wishes to be allowed to use the boys’ restroom at his high school. McGown & Markling has previously blogged about this case here: [include link]
In this case, the district court ruled against the transgender student, relying on a federal regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. However, the U.S. Department of Education’s Office for Civil Rights issued an opinion letter in early 2015 stating that, if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” Based on the 2015 letter, the U.S. Court of Appeals for the Fourth Circuit reversed the district court’s decision and ruled in favor of the student. The Fourth Circuit relied on the Supreme Court’s holding in Auer v. Robbins that courts generally should defer to an agency’s interpretation of its own regulation.
Despite the fact the Fourth Circuit’s ruling was based on Auer deference, the Supreme Court declined to decide whether Auer should be overruled. Rather, the Supreme Court will only be deciding two issues: (1) whether courts should give deference to agency letters, such as the Department of Education’s letter at issue here, and (2) whether the Department of Education’s interpretation that Title IX and its implementing regulations require schools to treat transgender students consistent with their gender identity as opposed to their biological sex be given effect.
McGown & Markling will continue to blog about this case as it progress with the Supreme Court.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.