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SCOTUS Vacates 4th Cir.'s Ruling in Transgender Bathroom Case

By Casey C. Sullivan, Esq. on March 06, 2017 | Last updated on March 21, 2019

The Supreme Court this morning vacated and remanded a Fourth Circuit ruling in favor of Gavin Grimm, a transgender Virginia student who had sought to use the boy's room at his high school. The Fourth ruled last April that courts must defer to Department of Education guidance on the issue, guidance that interpreted Title IX as requiring transgender students to be treated in accordance to their gender identity, even when it came to bathrooms.

But the Trump administration has since rescinded that guidance, leading the Supreme Court to toss the Fourth's ruling and send the issue back to the lower courts.

The Fourth's Deferential Ruling

The Supreme Court granted cert to the case, Gloucester County School Board v. G.G., last October, agreeing to hear arguments over what deference the DOE guidance was owed and whether, regardless of the guidance question, Title IX required schools to "generally treat transgender students consistent with their gender identity," as the DOE had found.

With the guidance rescinded, however, the first question largely fell by the wayside. So did most of the logic for the Fourth Circuit's ruling in Grimm's favor. That's because the Fourth's ruling was grounded almost entirely on deference to the Department of Education's Title IX interpretation.

In 2015, the DOE's Office of Civil Rights issued an unpublished opinion letter addressing the legal rights of transgender students and the responsibilities of schools that receive federal funds. Under Title IX, the letter explained, discrimination against transgender and gender nonconforming students is discrimination "on the basis of sex." As such, schools were instructed to treat such students in accordance to their gender identity, referring to them by the appropriate pronoun, for example, and allowing them to use the corresponding bathroom.

That interpretation, the Fourth found, was entitled to controlling weight as an agency's interpretation of its own ambiguous regulation -- what's known as Auer deference. The DOE applied its fair and considered judgment to an ambiguous legal issue and came to a determination that the courts must respect, the Fourth ruled.

Guidance Rescinded, Ruling Vacated

But now that the guidance has been rescinded, the Fourth's ruling seems to lose its force.

After the DOE shifted course on transgender student rights, both Grimm and the school board urged the Supreme Court to consider the proper interpretation of Title IX, aside from the administrative law questions the Fourth's decision raised.

The Court, however, was not interested. In a one-sentence summary disposition, the Court vacated the Fourth's ruling and remanded the case for further consideration.

Without the administrative guidance to support him, Grimm may be in a more difficult position on remand. In its decision on Grimm's behalf, for example, the majority in the Fourth had acknowledged several criticisms of the DOE guidance raised by the dissent. But those criticisms, the Fourth said, did not change the need to defer to the agency on the issue. "[O]ur Auer analysis complete, we leave policy formulation to the political branches," the court wrote.

Without a friendly administration to support them, Grimm and students in his position now face a more difficult task of convincing the courts that they are right not just on the question of deference, but on the underlying right to be treated in accordance with their gender identity.

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