The controversy surrounding a student’s right to use restrooms that correspond to their gender identity will be decided by the highest court in the land after arguments this March. The United States Supreme Court has decided to hear in Gloucester County School Board v. G.G, No. 16-273, a case which has been climbing through the court system since 2014.
In 2014, Gavin Grimm, a male transgender student attending a Gloucester County, Virginia high school was barred from using the men’s restroom after complaints from several residents and parents. Grimm expressly appealed to the principal of his high school and received permission in order to be able to use the men’s restroom during the 2014-15 school year. However, on December 9, 2014, various complaints prompted the Gloucester County School Board to enact a policy that specifically addressed the use of restrooms and locker rooms by transgender students. The new policy declared, “[The] use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.” By restricting Grimm from identifying with his gender identity, the policy isolated him from the rest of the student body. After the implementation of this policy, on January 7, 2015, the United States Department of Education Office for Civil Rights sent a letter to Grimm in which it stated, “When a school elects to separate or treat students differently on the basis of sex [when providing restrooms, locker rooms, shower facilities, housing, athletic teams and single-sex classes], a school generally must treat transgender students consistent with their gender identity.” The letter directly collided with the actions of the school board and prompted legal action from Grimm.
On June 11, 2015, Grimm filed a lawsuit against the Gloucester School Board, citing discrimination protections provided by the Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, while also seeking an injunction against the school board’s restroom policy, allowing him to use the men’s restroom. Adopted in 1972, Title IX is a “federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.” Furthermore, the Fourteenth Amendment’s Equal Protection Clause states, “[No] State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States…nor deny to any person within its jurisdiction the equal protection of the laws.” Despite these arguments, the district court ruled against the injunction and dismissed Grimm’s Title IX claim. Nonetheless, Grimm’s appeal in the United States Fourth Circuit Court of Appeals resulted in the reversal of the district court’s ruling on the basis that the term “sex” in the Department of Education’s Title IX law was ambiguous and according to Auer v. Robbins, 519 U.S. 452 (1997), the Department’s clarification of its own regulation in the letter to Grimm should provide significant weight on the interpretation of the term. The Appeals court ruled, “Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.”
This past fall, the Supreme Court agreed to hear the appeal brought forth by Gloucester County School Board. The hearing will take place on March 28th. The death of Justice Antonin Scalia last February has left an eight-justice Supreme Court, which may cause a split decision like the one in United States v. Texas, 579 U.S. _ (2016), decided last June. If the Supreme Court comes to a split decision, the Appeals Court’s decision would stand. Nonetheless, if President Trump’s recent nomination of Judge Neil Gorsuch is approved before the March oral argument, the deciding Court may look significantly different during the voting process and may pose legitimate threats to the petitioner’s case. Indeed, Auer deference, as opposed to Chevron deference, earned the hostility and opposition of both Justice Scalia and Judge Gorsuch. Nonetheless, the Court’s ruling will have an immense impact on the lives of many transgender American citizens and will set a precedent for future laws regarding the transgender community.