Gloucester County School Board filed its petition with the Supreme Court to hear its appeal of the Fourth Circuit ruling in favor of Gavin Grimm (G.G. in court documents) on Monday.
Gloucester argues that it should not have to accommodate transgender students, but much of the petition focuses on an important question about when courts should defer to an agency’s interpretation of its own regulation. The Court’s three most conservative members recently expressed interest in increasing the power of the judiciary at the expense of federal agencies, and it is possible that the Court could take up this issue if they can secure a fourth vote.
Although the case has its roots in the sometimes controversial issue of the use of bathrooms by transgender students, the board’s petition tries to characterize that question as merely a backdrop to the broader and more technical issue of Auer deference, along with the need to rein in unaccountable federal bureaucrats. Thus, the board tells the Supreme Court that the case “is not really about whether G.G. should be allowed to access the boys’ restroom, nor even primarily about whether Title IX can be interpreted to require recipients to allow transgender students into” restrooms and locker rooms. Rather, the board contends, at its core “this case is about whether an agency employee can impose that policy in a piece of private correspondence.”
----Amy Howe, SCOTUSblog
The letter in question indicated that, if schools choose to 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.”
And the court of appeals concluded that courts should follow that interpretation under a doctrine known as “Auer deference,” which allows courts to defer to an agency’s interpretation of its own regulation as long as the interpretation is neither ambiguous nor plainly erroneous and is the result of the agency’s “fair and considered judgment on the matter in question.”
Even if the Court does seize this opportunity to reconsider deference to agencies, however, this case is still fundamentally about whether a federal law prohibiting “sex” discrimination encompasses discrimination based on gender identity. The Department of Education concluded that it does, and that a regulation permitting gender-segregated bathrooms does not permit schools to exclude trans people from the bathroom that aligns with their gender identity. Gloucester does not simply believe that courts should not defer to the Department’s guidance. It believes that the Department’s guidance was wrong.
Gloucester argues that if Title IX protects both “gender identity” and “biological sex,” it somehow obliterates the law’s allowances for sex-segregated facilities:
Reading “sex” to include “gender identity” would make a hash of Title IX’s scheme allowing facilities and programs to be separated by “sex.”If “sex” signifies, not biology, but rather one’s “internal” sense of maleness or femaleness, the whole concept of permissible sex-separation collapses. What sense could there be in allowing “separate living facilities for the different sexes” if a biological male could legally qualify as a woman based merely on his subjective perception of being one? The answer is none.
This is tautological word soup; the school is arguing that if it can’t discriminate against transgender people, then it won’t be able to discriminate against transgender people. More importantly, the phrase “subjective perception” reveals that the school district does not understand what concepts like “gender identity” and “transgender” mean. It appears to believe that gender identity is a whimsical choice — as if a man can wake up one morning, decide that they feel like a woman, and that makes them “transgender.” In reality, a person’s gender identity is consistent; trans people stay that way and cis people do not suddenly decide to be trans. The district also ignores the fact that biological factors shape out gender identity, regardless of whether we are trans or cisgender.
--Zack Ford, Think Progress
It likewise seems lost on Gloucester that all people have a gender identity, whether they are transgender or not. It’s the only explanation for “preposterous” conclusions like this one:
As applied to Title IX, that preposterous construction would legalize just the kind of biologically based discrimination against men and women that Title IX was enacted to prevent. For instance, schools could exclude biological women from taking science classes or joining the chess team, so long as they allowed biological men who identify as females to do so. Only transgendered [sic] people would be protected under this Title IX regime; men and women who identify with their biological sex would receive no protection at all.
If that sounds like nonsense, that’s because it is. Because sex and gender align for most people, respecting gender identity instead of biological sex only changes how transgender people are treated. The men’s room would be open to all men, whether they are cisgender or transgender, and likewise for the women’s room. Gloucester’s argument is that trans men like Grimm are not men requires a rejection of all of the available information about gender identity that research has produced in the past half-century.
The school district’s argument is literally this: If we can’t discriminate against trans students, then we won’t be able to discriminate against trans students. Justice Stephen Breyer may have granted Gloucester the “courtesy” of hearing that argument before requiring it to accommodate Grimm, but hopefully he and his colleagues will not be convinced by it.
Grimm's lawyers have 30 days to respond.