The Supreme Court stepped into a morass when it decided to weigh in on a school district’s dispute with a transgender student over which bathroom he should use. But it side-stepped the most interesting legal issue the case raised—having nothing to do with the rights of transgender persons—perhaps because it may have to decide this case with an eight-member Court.   

G.G. is biologically female but identifies as a male. 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.

The facts of Gloucester County School Board v. G.G. could not be simpler. But the legal issue is complicated.

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.

The Supreme Court has agreed to decide two questions in this case. 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.”

Putting aside the factual context of this case entirely, it is relevant to state and local governments because the Gloucester County School Board asked the Supreme Court to decide whether to overturn Auer v. Robbin. The Court refused to consider this question.

In Perez v. Mortgage Bankers Association (2015) three Justices (including Auer’s author Justice Scalia) indicated they might be willing to overrule Auer. In February 2016, shortly before Justice Scalia died, the State and Local Legal Center (SLLC) filed an amicus brief in United Student Aid Funds v. Bible asking the Court to overturn Auer. The Court refused to hear that case. The Court may be more willing to take up this issue when nine Justice are on the bench.