On August 29, 2016, the Gloucester County School Board filed its petition for a writ of certiorari in the Supreme Court of the United States, seeking reversal of a lower court decision requiring the school district to allow students to use restrooms consistent with their gender identity even if that identity is different from their anatomical sex at birth. The petitioners, however, frame the issue in much broader terms, attacking the manner in which the Department of Education (“ED”) announced the rules at issue. If the Supreme Court elects to decide this case, and also chooses to confront these broader issues relating to ED’s guidance practices, it could have far-reaching consequences for many recent enforcement priorities for ED.
In the Gloucester County case, ED provided its initial position on the restroom issue in a letter from an Acting Deputy Assistant Secretary for Policy in ED’s Office for Civil Rights, which was directed to officials in Gloucester County. The Fourth Circuit found that the courts were required to defer to ED’s interpretation, even in this informal document, pursuant to Auer v. Robbins, 519 U.S. 452 (1997), which requires deference when an agency interprets its own regulations, unless its interpretation is “plainly erroneous or inconsistent with the regulation.” Shortly after the Fourth Circuit’s decision, ED issued a “Dear Colleague Letter” in which it stated its view that all institutions receiving federal funding must permit students to use sex-specific facilities according to their gender identity. This Dear Colleague Letter did not go through notice-and-comment procedures or any other formal agency rulemaking processes.
Though the petitioners disagree with ED’s interpretation on the specific question of whether Title IX’s prohibition on sex discrimination includes discrimination based on gender identity, their petition attacks a much broader issue—the manner of ED prescribing its guidance and the court’s deference to it. Specifically, the petitioner suggests that the Supreme Court should abandon or greatly alter the Auer doctrine. Additionally, the petitioner argues that ED should not be allowed to make or substantially alter policy through informal methods, such as Dear Colleague Letters. This is a view shared by the Eastern District of Texas, which recently issued a nationwide injunction precluding ED from enforcing or relying on the Letter and other similar guidance.
If the Supreme Court chooses to evaluate ED’s recent guidance practices and the deference they should be given, the effects could reach much further than restrooms for transgender individuals. Indeed, ED has used Dear Colleague Letters and other forms of informal guidance to establish its views on a host of issues, including institutions’ handling and investigation of alleged sexual assaults. See, e.g., April 4, 2011 Dear Colleague Letter; Questions and Answers on Title IX and Sexual Violence. This informal guidance has also recently been challenged, including the filing of a lawsuit seeking to invalidate the guidance on grounds similar to those raised in Gloucester County. This conflict is exacerbated by recent congressional oversight and inquiry about ED’s issuance of guidance without use of formal notice-and-comment procedures. Though ED has stated both in writing and in sworn testimony that this informal guidance lacks the force and effect of law, its positions taken in recent litigation appear inconsistent with those statements.
A decision from the Supreme Court is expected this fall regarding whether it will hear the Gloucester County case during the October 2016 term (which spans from October 2016 until June 2017). This case will be closely watched by many industries, though it is likely to have an outsized impact on higher education given ED’s recent and repeated practice of issuing guidance in this informal manner.