Gloucester County School Board v. G.G., No. 16-273 (U.S. Mar. 6, 2017).
Response by Professor W. Burlette Carter
Geo. Wash. L. Rev. On the Docket (Oct. Term 2016)
Fourth Circuit Opinion | Washington Post | SCOTUSblog
Trump Withdraws Title IX Guidance; Supreme Court Pauses. What Now?
On March 6, 2017, the Supreme Court vacated and remanded the Fourth Circuit’s judgment in Gloucester County School Board. v. G.G, a case concerning whether a transgender student should have access to sex-segregated school bathrooms matching his gender identity.1 The Court initially granted certiorari on two questions. First was whether the Obama-era approach of issuing “guidance” letters to interpret the Title IX Education Amendments of 19722 was entitled to judicial deference. Second was whether Title IX requires that schools receiving federal funding must allow students to access bathrooms consistent with their gender identity, as opposed to requiring access consistent with their anatomy or biology and/or allowing a third “all-gender” bathroom option.3 The procedural and political history that led to the Supreme Court’s order helps us assess how the G.G. case might proceed from here and how it fits within the larger scheme of litigation over lesbian, gay, bisexual, transgender, queer, intersex, asexual (“LGBTQIA”) rights. This response leaves to readers the question of how the merits should ultimately be resolved.
THE OBAMA-ERA GUIDANCES
Two Obama-era letters are at issue in the case. The first is a letter from James A. Ferg-Cadima, the then Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education (“the Ferg-Cadima letter”). Dated January 7, 2015, the letter responded to a December 14, 2014 email inquiry from Emily T. Prince, a lawyer and transgender rights advocate.4 The letter stated that “Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances” and that “[w]hen a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity.”5 It noted that the department previously required at least two school districts to comply with this interpretation. The second letter is a joint “guidance” letter dated May 16, 2016 and issued by the Department of Justice, Civil Rights Division (“DOJ”) and the Department of Education (“DOEd”). That letter, sent out to schools across the nation, stated that these departments interpreted Title IX’s reference to “sex” to include gender identity.6 The letter also reminded recipients that, “[a]s a condition of receiving Federal funds,” institutions have to comply with Title IX.7
G.G. is a high school student who was assigned female at birth, based on anatomy. When he was a teen, his doctor diagnosed him with “gender dysphoria” and recommended that G.G. transition to being a male in his everyday life.8 G.G. and his mother asked his school to recognize this transition. The school changed G.G.’s name and sex on student records. Initially, concerned about student reactions, G.G. asked to use a single-use bathroom in the nurse’s station.9 He did not ask to use the boy’s locker rooms, and chose to be homeschooled for P.E. The school allowed G.G. to email his teachers to inform them of his gender identity, preferred name, and pronouns.10 Later, G.G. concluded it was stigmatizing to use the bathroom in the nurse’s station and, upon request, was allowed to use the boy’s bathroom.11
On December 9, 2014, in response to complaints, the local School Board held a hearing on G.G.’s use of the boy’s bathroom. It determined that students should be permitted to use only the bathroom of their assigned sexes or a third all-gender bathroom. The school later increased the number of all-gender bathrooms.12
On December 18, the American Civil Liberties Union (“ACLU”) filed a Title IX complaint with the DOEd and DOJ on G.G.’s behalf.13 On June 11, 2015, G.G., again represented by the ACLU, filed a complaint against the School Board in the U.S. District Court for the Eastern District of Virginia. G.G. alleged that denying him access based on gender identity violates Title IX and the Equal Protection Clause. The same day, he also filed a motion for a preliminary injunction. The DOJ filed a Statement of Interest on June 29, 2015, supporting G.G.’s claims.14
The School Board moved to dismiss under 12(b)(6). They argued that the Ferg-Cadima letter guidance violated the Administrative Procedure Act,15 that its interpretations were contrary to Title IX’s “unambiguous” language and its legislative history, and that there was no equal protection right. They also argued that other students had a safety and privacy interest in sex-separated bathrooms and that they had fairly sought to balance the interests of the parties concerned. G.G. argued that the letter guidance was entitled to deference, that the move to the boy’s bathroom was medically necessary, and that there was no legitimate reason why his request should be denied. G.G.’s lawyers submitted two declarations: one by G.G. elating his struggles in being denied access to the boy’s bathroom and another by an expert in gender dysphoria. The School Board presented a declaration of a Board member, explaining how the school handled the matter. The Board did not dispute that G.G. was transgender.
The district court dismissed the Title IX claim and denied plaintiff’s request for the preliminary injunction.16 It further stated, “[t]o defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to ‘create de facto a new regulation’ through the use of a mere letter and guidance document.”17 The court said that it was not ruling upon the Equal Protection Clause claim.18 However, it also said “even if he has stated a claim, G.G. has not submitted enough evidence to establish that the balance of hardships weigh in his favor.”19 In particular, the court noted that the parties offered no live testimony and that it would not grant a preliminary injunction based on hearsay evidence that was inadmissible at trial and without the declarants being subject to cross-examination.20 According to the court, the parties were given the opportunity to present additional evidence, but did not do so.21
G.G. appealed. The Fourth Circuit reversed in part, vacated in part, and remanded.22 First, it held that the statute was ambiguous because it did not address the issue of how to determine a transgender student’s “sex.”23 Second, it held that Auer v. Robbins24 required deference to the Ferg-Cadima letter guidance, unless the district court found the interpretation to be plainly erroneous or inconsistent with a regulation or statute.25 It stated that the Administration’s interpretation need only reflect its “‘fair and considered judgment’” on the question presented.26 It said that the Administration had adopted one of two plausible interpretations. The other plausible reading, it said, was offered by the School District. The court rejected the view that the letter was a post hoc justification of a prior political decision.27 It also found the record “devoid of any evidence tending to show that G.G.’s use of the boys’ restroom creates a safety issue.”28 Lastly, the Fourth Circuit held the district court improperly disregarded the hearsay evidence and that it did not give sufficient weight to G.G.’s medical condition. Consequently, it found an abuse of discretion, reversed the dismissal, and remanded for reconsideration of the injunction consistent with its opinion. Judge Paul Niemeyer dissented. On remand, the district court granted the injunction, but solely as to restroom use. The DOJ/DOEd then issued its May 16 joint guidance.
The Fourth Circuit denied en banc review. Judge Niemeyer dissented again, but said he would not call for a poll of the court because “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.”29 Motions for stays of the district court’s injunction and of the Fourth Circuit’s mandates were denied. The Board then sought an emergency stay in the U.S. Supreme Court. On August 3, 2016, the Court granted that stay, 5-3.
The School Board filed its petition for certiorari on August 29, 2016. It sought review of three questions: (1) whether the Auer doctrine should be overturned, (2) whether Auer applied to an unpublished letter guidance, and (3) if deference is not required, does “sex” in Title IX mean gender identity.30 On October 31, 2016, the Court granted certiorari to consider questions 2 and 3.
THE ELECTION OF DONALD J. TRUMP AND THE WITHDRAWAL OF THE GUIDANCE
In November 2016, Donald J. Trump was elected President of the United States. The Senate confirmed his Secretary of Education, Elizabeth D. DeVos, on February 7, 2017 and his Attorney General, Jefferson B. Sessions, on February 8. In the evening of February 22, 2017, the DOJ and DOEd issued a replacement guidance letter, jointly withdrawing both the Ferg-Cadima letter and the later Obama-era guidance.31 The new guidance stated that the earlier directives “do not . . . contain extensive legal analysis, explain how the position is consistent with the express language of Title IX, or undergo any formal public process.”32 It said that the Departments believe that “there must be due regard for the primary role of the states and local school districts in establishing educational policy.”33 The letter also stated that “the withdrawal of these guidance documents does not leave students without protection from discrimination, bullying or harassment” and that “[a]ll schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”34
That withdrawal essentially turned the tables. The government, which previously supported G.G.’s position, thus aligned itself with the School Board.
THE SUPREME COURT’S DECISION TO VACATE AND REMAND
Noting the Trump Administration’s withdrawal of the Obama-era guidance, the Supreme Court directed the parties to submit letters expressing views on how it should proceed. Both sides urged the Court to hear the case, but the School Board also asked that the Court allow the Solicitor General’s office time to submit a brief. Of course, each side would then have been entitled to respond. On March 6, 2017, the Court vacated and remanded the case to the Fourth Circuit for consideration in light of the new Administration’s “guidance.”35
THE LIKELY PATH FORWARD
The Supreme Court’s summary order effectively pushed the G.G. case into the next Term, if it is to be heard. What then might be the next moves below?
An Exploding Injunction Claim?
Although G.G. will graduate this year, that event will not moot his case. The complaint claims damages and attorneys’ fees under 42 U.S.C. § 1988 (proceedings in vindication of civil rights). But, his graduation from “student” status will eliminate his standing to seek an injunction. That fact matters because the primary basis of his appeal appears to have been the injunction order (although the opinions are not entirely clear). Appeal of other interlocutory orders normally require permission of the district court first, and then of the court of appeals.36 Of course, the Fourth Circuit might also claim continuing jurisdiction to correct or amend the prior order, especially given remand. (At press time, G.G. had asked the Fourth Circuit for an expedited decision before his graduation).
Fourth Circuit Reconsideration of the Motion to Dismiss?
Assuming that the standing and appealability issues are resolved, the Administration might argue that Title IX’s language is not ambiguous and no interpretation is needed. But ambiguity is something of a red herring. Even if the circuit court finds the statute ambiguous, the Administration could then expressly “interpret” Title IX consistent with the School Board’s approach. Indeed, the Administration might do this to preserve the “letter guidance” approach generally, if it wishes to use that approach in the future.
Assuming ambiguity, the circuit court’s original language on deference is very broad. Again, the court concluded that Auer applies to letter guidance. It stated that there are two reasonable interpretations: one that the Obama Administration adopted and the other that the School Board adopted. Would it really be possible for the Fourth Circuit to find now that the new Administration’s interpretation is not reasonable? Could it dismiss the Trump interpretation as political but not the Obama-era one?
G.G. also might argue that the new letter, as it relates to bathrooms, is not guidance but is, rather, merely a withdrawal of a guidance. (Of course, G.G. would want the letter’s other statements about bullying and harassment to be guidance.) Thus, G.G. might argue that, in this new context, the Fourth Circuit is free to interpret Title IX for itself. But surely the Administration won’t stand still and not offer an interpretation. That argument, then, brings us back to the deference question.
Two things seems clear. First, if the Fourth Circuit does reconsider the dismissal, the parties will seek certiorari again. Second, by the time the Supreme Court would hear the case, G.G. would also have graduated.
The Equal Protection Claim
G.G. also asserts an equal protection claim. Although the claim initially seemed to be part of the original injunction request, neither the Fourth Circuit nor the district court analyzed it (and plaintiff did not press it). The circuit court will not consider the equal protection claim without the district court having first done so.37 And if the Title IX claim goes up again on appeal, the equal protection claim will not likely catch up. Either, of course, could go to trial on the merits. But G.G. also might press for his Title IX claim to be considered in the Supreme Court along with one or more other cases that do raise the equal protection issue.
One must see the G.G. case as part of a broader national debate over LGBTQIA rights and how they are to be balanced against the rights of others. Sports regulators have grappled with balancing opportunities for transgender athletes to compete consistent with their identity, on the one hand, with competitive parity in women’s sports on the other. These challenges involve regulating natural testosterone levels in transgender females in women’s competition, or regulating hormonal treatments for transgender males when required to compete in women’s sports, but not allowed in men’s. Apart from Title IX and the employment context of Title VII, the same or related issues arise in interpreting other statutes that use the term “sex.”
Biological definitions have been under attack in other ways. Some advocates argue that courts should replace traditional standards for defining who is a parent (e.g., biology, legal adoption) with ones that consider who spends time with a child in a parent-like role. Some argue that states should allow more than two parents to be recognized. California allows family court judges to do so.38 A Suffolk County New York family court recently awarded tri-custody to three persons who, it concluded, previously agreed to co-parent a child.39
Also related are debates over how states should regulate reproductive technologies. While used by others, these technologies are key avenues to parentage for LGBTQIA persons. While medical insemination to induce pregnancy is broadly allowed, most states and many countries ban commercial surrogacy contracts. Required to define parenthood under either approach, while there is variation, many jurisdictions look to biology or formal adoption.
The larger implications of these cases are also causing parties to align in ways some might consider surprising. For example, while many self-described feminists have strongly supported G.G.’s case, others have aligned with conservative groups to challenge claims that transgender females should be treated like other females or that discrimination based on sex always includes sexual orientation and gender identity. Some of the latter feminists have come out opposing transgender or all-gender access in “intimate” spaces, expressing concerns that the harassing or threatening conduct endured by women outside of such spaces will make its way into them. Some also argue that the original remedial aims of Title IX are still much needed but will be diluted for most women if sex is interpreted as gender identity. Indeed, the sex/gender identity comparisons are not without difficulty. Consider, for example, that Caitlyn Jenner, a transgender female, who trained as a man and won her decathlon Olympic gold medal while competing as a man in 1976. Only four years earlier, Title IX was passed to remedy women’s denial of opportunities in sports and other educational programs.
While many within the LGBTQIA community celebrate the G.G. case, some criticize that it advances “binary” categories that restrict gender classifications to only “male” and “female.” Some argue that the elimination of all sex/gender categories is the only fair solution.
Further, there are questions regarding the rights of groups vis-à-vis each other. Does one analyze a case that concerns the rights of groups that have experienced historical discrimination (and continue to experience it) in the same way that one analyzes a case involving groups with more clearly defined hierarchies or privilege vis-à-vis each other? And when do rules fashioned from the perspective of a majority, with or without ill-intent, become so onerous on a minority that they violate constitutional guarantees?
G.G. and Obergefell
In deciding how to proceed, plaintiffs’ lawyers are also considering Obergefell v. Hodges.40 In Obergefell, the Supreme Court held that the Constitution assures all couples, including same-sex couples, a fundamental right to marry. But the Court hinged the marriage right primarily on the Due Process Clause, while buttressing it with equal protection. While thrilled with the Obergefell result, many advocates hoped for (and argued for) a full-throated equal protection and due process holding, similar to that in Loving v. Virginia.41 They hoped to use it to blast open avenues to other rights. Obergefell’s approach amplified a debate among advocates over whether marriage should have been prioritized above other rights needed by LGBTQIA persons, such as rights to secure housing and employment.
Note also that there is no due process claim in G.G. Surely advocates do not concede that the School Board hearing was adequate to deprive them of the claimed right. Could the omission reflect a fear of inviting scholarly squabbles over whether there is such a thing as “substantive” due process? Could the omission have been a gamble to deny courts the option and, therefore, avoid the “split” approach adopted in Obergefell?
Will plaintiffs be arguing that the Court should adopt the “evolving notions” standard it seemed to adopt in Obergefell? There the majority told us: “The nature of injustice is that we may not always see it in our own times.”42 It said that the Founders “did not presume to know the extent of freedom in all of its dimensions and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”43 Certainly, too, we will see plaintiffs invoke the notion of “equal dignity” that has been such a central feature of Justice Anthony Kennedy’s opinions on civil rights.44 And state actors will respond, inter alia, that the Constitution reserves education policy to the states.
What of the standard of scrutiny? All plaintiffs in the bathroom access cases have argued for heightened scrutiny. Some seek strict scrutiny, as used in race discrimination cases. Others have argued for intermediate scrutiny as used in sex discrimination cases. Conversely, state actors have argued that a rational basis standard should apply. But Obergefell’s split approach gave no indication of the applicable standard of scrutiny.
Interestingly, the issue of whether the denial of a right to marry was “sex” discrimination did come up in Obergefell. That case was actually four cases, and at least one of the plaintiff groups alleged the point.45 So too did some amici. At oral argument, Justice Roberts asked why the denial of same-sex marriage was not sex discrimination. But the Court did not decide the case on that ground, and Roberts ultimately issued a strong dissent.
It is often said, of course, that the bathroom battle is not about bathrooms, but rather about identity. Early on, Obergefell sets forth the striking statement that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”46 Was the majority looking ahead to transgender rights or, at least, a right to be “out”? Must a government always accept honestly self-defined identities in its policymaking?
The new Administration will be watched also. The President is able to fill two vacancies on the independent Equal Employment Opportunity Commission this year and to appoint its general counsel. The Supreme Court will also likely have a replacement ninth Justice—selected by President Trump.
Three Justices—Ruth B. Ginsburg, Elena Kagan and Sonia Sotomayor—voted against a stay in G.G. That may be a sign of support for the broader interpretation of the term “sex” in federal statutes, and a supportive view of equal protection. But on a panel of nine, the three will need to convince two other Justices to come on board for the win. The split due process/equal protection analysis in Obergefell suggests that the votes needed for an equal protection-centered opinion were not then available. We will see if they are available when G.G., or a similar case about bathroom access and gender identity, finally receives Supreme Court review.
Professor Carter is a historian whose scholarship and scholarship in progress covers a wide variety of historical topics including early American legal treatment of women and minority groups (including LGBTQIA communities), early legal education, and sports history. She has taught Civil Procedure, Evidence, Trusts and Estates, Sports and the Law, and Women, Money, and the Law. She filed a historical brief in support of neither side, and on her own behalf, in Obergefell v. Hodges.
- See Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Mar. 6, 2017), vacating 822 F.3d 709 (4th Cir. 2016).
- 20 U.S.C. § 1681(a) (2012) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” (emphasis added)).
- See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), cert. granted, No. 16-273 (U.S. Oct. 28, 2016).
- See Letter from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights, to Emily T. Prince, Attorney (Jan. 7, 2015) (on file with author).
- See Letter from Catherine Lhamon, Assistant Secretary for Civil Rights, U.S. Department of Education and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice, to Colleagues (May 13, 2016), https://www.justice.gov/opa/file/850986/download.
- See G.G. ex rel. Grimm, 822 F.3d at 715.
- See id. at 731.
- See id.
- See id.
- See id. at 732.
- See Letter from Joshua A. Block, Staff Attorney, LGBT & AIDS Project ACLU, and Rebecca K. Glenberg, Legal Director, ACLU of Virginia, to Educational Opportunities Section, Department of Justice, Civil Rights Division (Dec. 18, 2014) (on file with author) (arguing “biological gender” policy violates Title IX and requesting that complaint be deferred to Department of Education if DOJ declines to pursue).
- See Statement of Interest of the United States, G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 132 F. Supp. 3d 736 (E.D. Va. 2015) (No. 4:15-CV-00054).
- See 5 U.S.C. § 553(b)(3) (2012) (requiring notice and comment before issuance of regulations).
- G.G. ex rel. Grimm, 132 F. Supp. 3d 736, 753.
- See id. at 746.
- Id. at 747.
- See id.
- Id. at 748.
- See id.
- See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), vacated and remanded, No. 16-273 (U.S. Mar. 6, 2017).
- See id. at 720–21.
- 519 U.S. 452 (1997).
- G.G. ex rel. Grimm, 822 F.3d at 719.
- See id.
- Id. at 720.
- See id. at 723–24 n.11.
- G.G. v. Gloucester Cty. Sch. Bd., 824 F.3d 450, 453 (Niemeyer, J., dissenting).
- Petition for Certiorari, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Mar. 6, 2017).
- See Letter from Sandra Battle, Acting Assistant Secretary for Civil Rights, U.S. Department of Education and T.E. Wheeler, II, Acting Assistant Attorney General for Civil Rights, U.S. Department of Justice, to Colleagues (Feb. 22, 2017), https://assets.documentcloud.org/documents/3473566/Colleague-201702-Title-Ix.pdf.
- See id.
- Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Mar. 6, 2017), vacating 822 F.3d 709 (4th Cir. 2016).
- See, e.g., 28. U.S.C. § 2892(b) (2012) (appeal allowed if trial judge certifies matter relates to controlling question of law, there is substantial ground for difference of opinion, and an immediate appeal may materially advance the litigation and circuit court must also permit the appeal).
- See G.G. ex rel. Grimm, 822 F.3d at 717 n.3 (rejecting consideration of equal protection claim before district court has the opportunity to consider).
- See, e.g., Cal. Fam. Code § 4052.5 (2017), Cal. Fam. Code 7601(c), (d) (2013).
- See Joel Stashenko, In ‘Unique’ Case, Judge Grants Legal Custody of 1 Child to 3 Adults, N.Y.L.J. (Mar. 9, 2017) http://www.newyorklawjournal.com/home/id=1202780964584/In-Unique-Case-Judge-Grants-Legal-Custody-of-1-Child-to-3-Adults?mcode=1202617075062&curindex=1.
- 135 S. Ct. 2584 (2015).
- 388 U.S. 1 (1976).
- Obergefell, 135 S. Ct. at 2598.
- Id. at 2608 (noting with regard to same-sex couples who wished to marry, “[t]hey ask for equal dignity in the eyes of the law. The Constitution grants them that right.”).
- See Complaint at 27–31, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014) (No. 3:13-cv-01-01159) (noting that counts II, III discuss that denial of right to marry is both sexual orientation discrimination and sex discrimination in violation of the Fourteenth Amendment).
- See Obergefell, 135 S. Ct. at 2593.
W. Burlette Carter, Response, Gloucester County School Board v. G.G.: Trump Withdraws Title IX Guidance; Supreme Court Pauses. What Now?, Geo. Wash. L. Rev. On the Docket (Mar. 22, 2017), http://www.gwlr.org/gloucester-county-school-board-v-g-g/.