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For most high school students, using the restroom is not a matter of national importance—but in the case of Gavin Grimm, the U.S. Supreme Court will be weighing in.
Grimm—the transgender high school student at the center of G.G. v. Gloucester County School Board—is challenging the bathroom policy of the local Virginia school board that is preventing him from using the boys’ restroom.
Although he was assigned female at birth, Grimm identifies as male, has undergone hormone therapy, and legally changed his name—but he has not had surgery for sex reassignment. Grimm’s school initially allowed him access to the boys’ restroom but later changed its policy after receiving complaints from parents of other students. The school also made modifications to the existing male and female bathrooms and built “single-stall unisex restrooms available to all students,” but Grimm argued that those facilities made him feel “stigmatized” and “different.”
The Supreme Court’s recent decision to take up the case in its next term sets the stage for a showdown over school bathroom access for transgender students and hinges on the question of whether the Court should defer to the Obama Administration’s interpretation of Title IX regulations.
Title IX prohibits discrimination “on the basis of sex” in any “education program or activity receiving Federal financial assistance.” However, the U.S. Department of Education’s regulations implementing Title IX allow for “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the facilities for each sex are “comparable.”
An unpublished letter issued by an official at the Education Department’s Office for Civil Rights in January 2015 in response to an inquiry by Grimm interpreted those regulations to mean that transgender students must be allowed access to school restrooms “consistent with their gender identity.”
Grimm, who is represented by the American Civil Liberties Union, argued that the school’s policy violates Title IX because it prohibits him from accessing the boys’ restroom in accordance with his gender identity. However, a federal judge dismissed the claim, reasoning that Title IX simply prohibits discrimination on the basis of biological sex, and “not on the basis of other concepts such as gender, gender identity, or sexual orientation.”
In a 2-1 decision—which is the subject of Grimm’s appeal to the Supreme Court—a federal appeals court reversed the lower court’s decision. The panel determined that the Education Department’s January 2015 letter should be given “controlling weight” under the Supreme Court’s Auer v. Robbins decision. According to Auer, a court should not overturn an agency’s interpretation of its own “ambiguous” regulations unless it “is plainly erroneous or inconsistent with the regulation or statute.”
The majority accepted the government’s position that the Education Department’s regulations are ambiguous because they fail to specify how transgender students should be treated. Although those regulations plainly allow for separate facilities, the majority reasoned, “maleness” or “femaleness” could plausibly be determined with respect to either gender identity or physical genitalia.
Next, the majority determined that the agency’s interpretation was neither “plainly erroneous” nor “inconsistent with the text of the regulation.” The court recognized that dictionaries from the time when the regulations were adopted in 1980 indicated that biological sex was the primary indicator of “maleness and femaleness” but reasoned that they did not require “a hard-and-fast binary division on the basis of reproductive organs” in all cases. The majority further reasoned that the mere novelty of an interpretation does not justify withholding Auer deference and that other agencies have already promulgated guidance supporting bathroom access based on gender identity.
One judge dissented. The new definition of “sex” adopted by the majority, he contended, was simply designed to reach a “desired outcome.” He argued that the Education Department’s Title IX implementing regulations unambiguously authorize separate bathroom facilities “on the basis of sex” as it was “understood at the time of enactment.”
The dissent emphasized that all people have a “legitimate and important interest in bodily privacy such that his or her nude or partially nude body…[is] not exposed to persons of the opposite biological sex.” It pointed to the Supreme Court’s statement in United States v. Virginia—which opened the Virginia Military Institute to women—that introducing women into the previously all-male school “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex.”
The majority countered that concerns about privacy and safety are “fundamentally questions of policy” for the agency to make, and do not affect whether Auer deference should be granted to the Education Department’s interpretation.
In May 2016, less than a month after the appeals court’s decision, the Education Department issued a “Dear Colleague” letter to all educational institutions that receive federal financial assistance, reiterating its interpretation from the January 2015 letter. Three months later, a federal judge in Texas issued an injunction against the “Dear Colleague” letter. Another federal lawsuit by ten states is also challenging the guidance.
During his campaign, Donald Trump suggested that transgender people should be free to choose which bathroom to use, but his recent selection of Betsy DeVos to head the Education Department has led to some concern—based on reports that members of DeVos’s family donated to organizations that oppose LGBT causes—that the Trump Administration could roll back the Education Department guidance and other protections. As the appeals court majority noted, a future administration can always “choose to implement a different policy.”
The case has generated excitement on both political right and left. One commentator for the conservative Heritage Foundation hailed the case as an “opportunity for the justices to roll back massive federal government overreach,” while a director at the National Center for Lesbian Rights reportedly argued that the Supreme Court should take action to “ensure that transgender people are accepted and included as equal members of our society.”
Shortly before it agreed to take the case, the Supreme Court stayed an injunction against the school board’s policy, meaning that the bathroom policy will remain in effect until the Supreme Court decides the case next year—right around the time Grimm will graduate.