On August 3, 2016, the United States Supreme Court granted a stay to a Virginia school Board pending Supreme Court review of the case. In an action reminiscence of the same sex marriage controversy, the Supreme Court’s involvement in the transgender restroom debate signals that they may be willing to hear the case on its merits. The Grimm case, as well as the Court’s stay, has yet again been characterized as sociologically “monumental.”
However, the backdrop and the litigation itself is every bit as “incremental” as it is monumental. From the passage of Title IX in 1972, to recent OCR decisions, to the North Carolina law requiring bathroom usage consistent with birth gender, to the Grimm stay…change can be an arduous odyssey. As always, public schools are at the forefront grappling with the question of whether transgender people should be allowed to go to public facilities that correspond with their gender identity, or, whether such access would infringe on privacy rights. Gavin Grimm’s quest, much like that of President Obama ‘s Department of Education, and America’s public schools, is best summarized by the Chinese proverb, “the journey of 1000 miles begins with a single step.” No matter where you may fall in this debate, we are learning that every step is important.
I. Gavin Grimm—A 16-year-old at the Center of a Struggle
Gavin Grimm was born female and diagnosed with severe gender dysphoria. At the beginning of his sophomore year, his mother contacted school administrators to facilitate transitioning. School administrators permitted him to use the boys restroom and he did so for two months without incident. However, in December 2014 after receiving parental complaints the Glouchester County School Board (“Board”) adopted a policy, much like the later North Carolina law, allowing bathroom usage based on the gender noted on the student’s birth certificate. The policy also made single-stall restrooms available to students requiring, “students with gender identity issues to use an alternative private facility.”
Gavin and his mother contended that prohibiting him from using the boys restroom and confining him to a single alternative stall was a form of discrimination based on his gender identity. The American Civil Liberties Union (“ACLU”) sued the Board arguing the policy is unconstitutional under the 14th Amendment Equal Protection clause and violates Title IX prohibitions against discrimination based on sex. The change in board policy prompted the highly publicized litigation. Board policy is important.
II. How We Got Here
The procedural posture of this litigation, while possibly mind-numbing to media observers, speaks volumes of how this critical issue came before the Supreme Court. In September 2015, Virginia Federal District Court Judge Robert Doumar dismissed the Title IX claim and allowed the Equal Protection cause of action to survive. In April 2016, by a 2-1 vote, the Fourth Circuit Court of Appeals reversed the dismissal of the Title IX claim on the grounds that the District Court, “did not accord appropriate deference” to Department of Education regulations. The regulations at issue essentially state that Title IX applies to all students regardless of their gender identification. (See analysis December 28, 2015 Client Alert-Those Who Fail to Learn from History Are Doomed to Repeat It.). The appellate panel’s ruling did not immediately grant Gavin the right to use the boys’ restroom; rather, it directed a lower Court to reevaluate his request to be able to use those restrooms.
While amicus counsel, Roger Gannam, with the conservative Liberty Counsel, decried the court’s reasoning as “blatant judicial legislation” the appellate panel relied on strong Supreme Court precedent. Auer v. Robbins 519 U.S. 452 (1997) involves the standard the Court should apply when reviewing an executive department’s interpretation of regulations established under federal legislation. The case established the principle that “Courts are to defer to an agency’s interpretation of its own regulation”, this is known as “Auer deference.” Although this principle has been criticized by some Supreme Court justices, the Roberts Court passed at a recent request to reverse the doctrine in United Student Aid Funds v. Bible, involving the interpretation of student loan regulations. Auer deference is the law of the land. Here is why this is fascinating. Department of Education OCR letters state, “This is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such.” However, Auer deference makes them all but legally precedential. Federal regulations are important.
A. The Most Important Judge You Have Never Heard Of
The Board requested reconsideration. Again, by a 2-1 vote, the Fourth Circuit turned down reconsideration request. In dissent was Judge Paul V. Niemeyer, a George W. Bush appointee who stated the ruling, “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.” Although he believed the panel should reconsider, Judge Niemeyer declined to exercise his right to call for a vote among his colleagues on the question of en banc review. In not calling for a vote, Judge Niemeyer stated, “the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application. He said the case presented the legal issues clearly, without “the distraction of subservient issues.” Although clearly not an LGBT sympathizer, Judge Niemeyer put aside his personal philosophy to allow the matter to proceed directly to the Supreme Court.
Judge Niemeyer disproved the old adage among lawyers;… the only difference between God and a federal court judge is that God does not think he is a federal court judge.” In light of the Court’s recent rulings on gay rights and same-sex marriage, Judge Niemeyer cannot rely on an ideological conservative majority. Perhaps he understood that school districts are seeking guidance on this issue and that young Gavin needs to know which restroom he can use. Judicial temperament is important.
III. The Importance of the Supreme Court’s Stay Order
Despite everybody’s best efforts the Supreme Court’s stay means Gavin’s restroom will not be decided when school resumes on September 6. While that may be bad news for Gavin, it should not necessarily be seen as bad news for America’s schools. This is undoubtedly a complex and contentious issue. There have been multiple OCR findings and this month the Obama administration set out a nationwide letter to schools noting its position that Title IX does protect all students. Eleven states have sued the Obama Administration in a Texas Federal District Court to challenge this policy position. North Carolina has become the center of an internal and national controversy by passing laws restricting bathroom access to one’s birth gender. It is truly a tribute to our nations commitment to separation of powers that such polarizing issues can be resolved by nine… or more likely three Justices.
The Supreme Court’s single page stay order is quite elucidating. The Supreme Court needs four Justices to review a case on the merits. Chief Justice Roberts, and Justices Kennedy, Thomas and Alito voted to grant the stay application. Justices Ginsburg, Sotomayor and Kagan would vote to deny the stay application. Concurring, Justice Breyer stated that he had voted to grant the stay, “as a courtesy” adding to do so would only, “preserve the status quo.” Clearly, not telegraphing strong support for the Board’s position on the merits. Either party needs five of the Court’s eight Justices to prevail. Six Justices have essentially made their positions known. Chief Justice Roberts, while no great fan of the Obama administration, reversed his apparent position and voted in support of the Affordable Care Act. Justice Kennedy is often a swing vote and is unpredictable on social issues (i.e. abortion, gay rights), and Justice Breyer has not made up his mind. By the way, where is Merrick Garland? Judicial appointments are important.
Whether or not the Court grants certiorari they are sending an important message. The Supreme Court can bring an end to this debate once and for all. However, perhaps, this sociological dispute should not be decided by a Court in equipoise. As we have seen each step, Board policy, federal regulations, judicial temperament and appointments are important to progress. Historically, the United States and Supreme Court has taken an incremental approach to social change, building on legislation and precedent to achieve what is possible. Whether or not now is the time remains to be seen, but the process…the journey is important to making lasting change.
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