What happened today in Gloucester County School Board v. G.G. – The Virginia transgender bathroom case.

This writing is an attempt to provide a strictly factual outline of the controversial case of Gloucester County School Board v. G.G. as relates to the actions of the Supreme Court. I am specifically attempting to not insert political viewpoints but to provide a factual understanding for others to use when forming their own opinions.

Today the Supreme Court vacated and remanded Gloucester County School Board v. G.G. “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.” That “Dear Colleague” guidance document  served to withdraw a previously issued guidance document related to the application of Title IX protections to transgendered students because:

“[t]hese guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”

The previous “Dear Colleague” guidance document was issued on May 13, 2016 and stated:

“A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.  A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.”

In Gloucester County, the Fourth Circuit had used the May 13, 2016 guidance document when forming its opinion that Title IX protections extended to transgendered students when it came to bathroom access. The judges did this, in party, by applying the rule in Auer v. Robbins which 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.” (quoting the Fourth Circuit Opinion).   The Fourth Circuit then went on to determine that Title IX was, in fact, ambiguous stating:

 “Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia – and the Department’s interpretation – determining maleness or femaleness with reference to gender identity.”

To find that the term “sex” was ambiguous as to transgendered students, the court looked to definitions of “sex” at the time Title IX was originally drafted, stating:

“Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge.”

So essentially the Fourth Circuit determined that as to most distinctively male or female students, the term “sex” was unambiguous. However, as to transgendered students or students that may fall into a number of non-binary sexualities, the Fourth Circuit found that the term “sex” was ambiguous. As the Fourth Circuit found the term “sex” to be ambiguous as to G.G., the judges then applied the Auer rule, finding that the ambiguity should be resolved by the agency’s own interpretation – meaning the May 13, 2016 guidance document described above. Of course, now that guidance has been withdrawn – and not been replaced by additional guidance. With no guidance, we are left with Title IX’s use of the term “sex” which the Fourth Circuit has already found to be ambiguous.

What does this all mean? The short version is that for now we are back to where we were on May 12, 2016 and Title IX protections do not extend to transgender students in Virginia. As the ruling of the Fourth Circuit was vacated, we have returned to a pre-litigation setting where the resolution of the Gloucester County School Board has not been struck down.

What happens next? The Fourth Circuit must act. It could remand to the District Court or re-interpret its own ruling without considering the withdrawn May 12, 2016 guidance.  The Fourth Circuit may likely assume that the District Court’s original opinion would not change given that the District Court did not apply the May 12, 2016 guidance. Then the Fourth Circuit would need to determine whether or not it can provide a definition to the term “sex” as it applies to transgendered students without relying on the guidance of the Department of Education or the Department of Justice.

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