Supreme Court agrees to hear transgender bathroom case

Supreme Court agrees to hear transgender bathroom case
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The Supreme Court has agreed to hear a case challenging a Virginia school’s refusal to let a transgender student use the boys’ bathroom.


The court on Friday granted review of the case, known as Gloucester County School Board v. G.G.

The case centers on G.G., a 17-year-old boy who was born female, who was barred from using the boys' bathroom after the school board enacted a policy in December 2014 requiring students to use the bathroom that corresponds with their gender assigned at birth.

In August, the short-handed court blocked by a 5-3 vote a court order that would have allowed G.G. to use the boys' bathroom when he returned to school in the fall.

Democratic-appointed Justice Stephen Breyer sided with the court’s conservative members in issuing an order to temporarily stay the lower court ruling. He said at the time that granting a stay preserves the status quo until the court considers the school’s petition. 

The justices are being asked to weigh whether agency deference should be extended to an unpublished agency letter and whether the Department of Education’s specific interpretation that Title IX anti-discrimination laws require schools to treat transgender students consistent with their gender identity when it comes to bathroom facilities. 

The Department of Education and the Department of Justice released joint guidance in May directing public schools to allow transgender students to use the bathroom that matches their gender identity.

In its petition, the school board argued that the agency’s newfound interpretation of “sex” under anti-discrimination laws constituted an agency rulemaking that required a public notice and comment period under the Administrative Procedure Act. 

The school board also pointed to an agency opinion letter written prior to that guidance by James Ferg-Cadima, acting deputy assistant secretary for policy for the Education Department’s Office of Civil Rights, as the basis for the Fourth Circuit Court of Appeals ruling.

In that letter, Ferg-Cadima said a school generally must treat transgender students consistent with their gender identity.

The Fourth Circuit said the letter was due “controlling” deference under Auer —  a doctrine that requires courts to enforce an agency’s interpretation of its own regulations unless that interpretation is “plainly erroneous or inconsistent with the regulation.” 

“At bottom, then, this case is not really about whether G.G. should be allowed to access the boys’ restrooms, nor even primarily about whether Title IX can be interpreted to require recipients to allow transgender students into the restrooms and locker rooms that accord with their gender identity,” the school board said in court documents.

“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.”

The school board asked the Supreme Court to weigh whether the Auer doctrine should be overturned, but the justices decided not to take that question in reviewing the case.

- This story was updated at 5:27 p.m.