A county school board in Virginia asked the Supreme Court on Monday to reject the Obama administration’s view that illegal discrimination based on sex also forbids bias against transgender people. The petition challenging that view can be found here.
The Court is not expected to act on the new case for several weeks. For now, a ruling by the U.S. Court of Appeals for the Fourth Circuit upholding the government policy is on hold, under a temporary order the Supreme Court issued by a 5-to-3 vote on August 3. The Justices’ order applies only to this one case.
The case involves Gavin Grimm, a 17-year-old transgender student who is about to enter his senior year at Gloucester County High School. Assigned female gender at birth, Gavin identities now as a boy, and seeks access to the boys’ restroom at school. The Supreme Court’s temporary order will bar his access, at least until the Justices act on the new petition.
As a practical matter, Gavin’s school year will be all but over, if the Court grants review of the school board’s appeal. The case may not even be heard by the Justices until February or March, and it could take several weeks for a decision to emerge.
The Gloucester County School Board’s case is the first to reach the Court amid a still-spreading national controversy over the rights of transgender people — that is, those individuals who are assigned one gender at birth but, as they grow, accept themselves as of the opposite gender.
A federal judge in Texas has issued a nstionwide injunction against enforcement of the Obama administration policy, but that may not apply to cases developing in other courts — including the Gloucester County case.
Tcchnically, the school board is asking the Justices to review not only the Fourth Circuit Court’s ruling deferring to the administration’s position on transgender rights, but also a federal trial judge’s later order requiring the board to allow Gavin equal access to the boys’ restrooms at school.
The appeal, aside from directly challenging the government’s interpretation of a 1972 law, Title IX, which outlaws sex bias in federally funded education programs, also asks the Court to overrule a 1997 decision that requires the courts to defer generally to the way that federal agencies interpret their own rules and regulations. (That is the concept of “Auer deference,” named for the decision in Auer v. Robbins).
The Fourth Circuit Court relied on that notion in deferring to the government’s interpretation of rules implementing Title IX.
Three of the current Justices have suggested that the concept be reconsidered, arguing that it gives too much power to federal agencies, at the expense of the authority of the courts.
The school board suggested that, if the Court does retain that concept, it at least should rule that deference does not apply to a federal agency letter that is not binding as a legal matter. Such letters have been issued by the Health and Human Services Department in interpreting sex bias under Title IX to include bias against transgender people.
(The petition has not yet been assigned a docket number)
(This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)