With a new filing due at the Supreme Court next Tuesday by a Virginia school board defending its policy on transgender students’ rights, the case — involving a 16-year-old about to enter his senior year in high school — is gaining in importance.
That point became clear on Wednesday when the Obama administration relied heavily upon a federal appeals court decision in that case when it asked a federal judge in North Carolina in a separate case to bar enforcement of a statewide law controlling restroom access by transgender people.
In the Virginia case, G.G. v. Gloucester County School Board, the school system’s leaders have been pursuing a number of legal moves in lower courts, all as a prelude to moving on to the Supreme Court next week. The case thus will provide the first reaction by the Justices to the intensifying nationwide controversy over the rights of transgender people.
The youth, G.G., and his mother won a significant victory in the U.S. Court of Appeals for the Fourth Circuit on April 19, when a divided three-judge panel said it was required to accept the view of federal education officials that barring a transgender student from a restroom that conforms to that student’s gender identity violates a federal ban on sex discrimination in education — Title IX.
G.G. was assigned female gender at birth, but now has the identity of a male, and he seeks to use the boys’ restroom at Gloucester High School. The school board, however, has a policy that all students must use a restroom that conforms to their birth gender, unless they are willing to use one of three unisex toiler facilities. G.G. is not willing to use that alternative, arguing that it denies him equality.
After the Fourth Circuit Court panel rejected that policy, relying upon the ban on sex bias in Title IX, a federal trial judge in Virginia specifically ordered the school board not to enforce that policy as to G.G. That is the specific order that the school board is now is seeking to delay, with the next school year due to start on September 6.
The trial judge, U.S. District Judge Robert G. Doumar, refused on Wednesday to delay his order while the school board challenges it, first in the Fourth Circuit Court and then in the Supreme Court. The school board promptly asked the Fourth Circuit Court for a delay, and that court ordered lawyers for G.G. and his mother to file a reply by Thursday afternoon.
The school board asked the Fourth Circuit Court to rule by next Monday, noting that it has plans to file on Tuesday a request for delay from Chief Justice John G. Roberts, Jr. Roberts has the authority to handle preliminary matters from the Fourth Circuit, a geographic region that includes Virginia. He also has the option of sharing such matters with his colleagues.
The Fourth Circuit’s area also includes North Carolina. Because of that, the Obama administration on Tuesday told U.S. District Judge Thomas D. Schroeder of Winston-Salem that he was bound by the Fourth Circuit Court ruling in the G.G. case on the scope of Title IX as it applied to the rights of transgender students at school.
Noting that the U.S. Department of Education has followed “for several years” a policy of treating educational equality for transgender students as guaranteed by Title IX, the new filing argued: “The Fourth Circuit has deferred to this interpretation, affording it controlling weight.”
That case (United States v. North Carolina) involves the legality of a North Carolina law, known as “H.B. 2,” that requires all state and local government agencies to limit the use of restrooms to the birth gender of persons having access to those facilities.
The North Carolina case is in its preliminary stages, so the G.G. case will reach the Supreme Court ahead of it.
When the Fourth Circuit Court’s ruling first emerged in the G.G. case, that did not appear to be a strong candidate for Supreme Court review. The majority of the three-judge panel did not itself rule on the meaning of Title IX in transgender cases, saying it was bound to defer to the view of the U.S. Department of Education. It sent the case back to Judge Doumar to apply that approach (which Judge Doumar had rejected earlier).
The Newport News judge, concluding that he was bound by the Fourth Circuit Court, then blocked enforcement of the Gloucester school board policy as it affects the youth G.G.
With that new order in place, and with the Fourth Circuit Court now apparently getting set to act quickly on the school board’s postponement request, the G.G. case has become a more solid test of the Title IX question.
One of the legal arguments that the school board’s lawyers have been pressing hardest is that the kind of deference to Education Department views that the Fourth Circuit majority applied has been strongly criticized in recent years by three Justices — Chief Justice Roberts and Justices Samuel A. Alito, Jr., and Clarence Thomas. (The late Justice Antonin Scalia was also a critic of that approach.)
The basic argument of the critics of that form of deference (known as “Auer deference,” named after a Supreme Court decision in the 1997 case of Auer v. Robbins) is that it transfers to federal agencies a task that should belong to the courts — interpreting the scope of those agencies’ powers under federal laws.
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