Late last week, the Supreme Court of the United States granted the petition for a writ of certiorari in Gloucester County School Board v. G.G. on two of the three questions presented for review. Thus, later this term (prior to the end of June) the Supreme Court will likely resolve a growing split among courts of appeals as to whether schools receiving federal funding are required—pursuant to Department of Education (“ED”) guidance interpreting Title IX—to permit students to use restroom facilities according to their gender identity, irrespective of their anatomical gender. Adding to the confusion on this issue, a federal district court in Texas issued a nationwide injunction prohibiting ED from enforcing its guidance on this issue.
The first question the Supreme Court will decide is whether ED’s interpretation of Title IX, articulated in an informal letter and “Dear Colleague Letter” should be given deference, even though those letters lack the force of law. As we have discussed, depending on the depth of the Supreme Court’s analysis on this deference question, the outcome of this case could have a major impact on a wide variety of issues and on ED’s regulatory authority.
Second, the Supreme Court will address—irrespective of deference to ED’s own letter interpretations—whether Title IX and ED’s regulations (specifically, 34 C.F.R. § 106.33) permit and/or require ED’s interpretation that facilities be accessible according to a student’s gender identity. We briefly explored the history of this case when the Supreme Court initially stayed the court of appeals ruling in August 2016.
Gloucester County School Board v. G.G. will likely be one of the most closely watched cases of the Court’s 2016 Term, and we will continue to update this blog as the case progresses.