Brief in Gloucester County School Board v. G.G. involves the appropriate deference to be given the Department of Education’s interpretation of Title IX
January 12, 2017 – Milwaukee, WI – The Wisconsin Institute for Law & Liberty, through its Center for Competitive Federalism (CCF), this week again filed an amicus curiae brief in support of the Petitioner in Gloucester County School Board v. G.G. The case involves the appropriate deference to be given the Department of Education’s interpretation of Title IX as it relates to transgender students. The case has been accepted for review by the United States Supreme Court, which will hear oral arguments in the weeks ahead.
Director of CCF Mario Loyola commented that, “Unelected and unaccountable bureaucrats at the Department of Education should not be provided deference in their Title IX interpretation – an interpretation that turns the original understanding of the statute and regulation on its head, undermines the prerogatives of local school boards, vitiates the role of Congress in amending Title IX, and runs afoul of the clear procedural requirements of the Administrative Procedure Act.”
“CCF continues to advance a federalism that respects the separate spheres of the federal and state governments and the limits imposed by our constitutional structure on both of them,” commented WILL Founder and President Rick Esenberg. “Our brief lays out in very clear terms how the Department’s interpretation of Title IX is unconstitutionally coercive of state governments. In fact, to use the language of Chief Justice Roberts inNFIB v. Sebelius, it is simply a ‘gun to the head’ of local school districts. WILL and its Center will continue to fight for a return to a competitive form of federalism our founder’s envisioned.”
About The Case
The case involves a student in the Gloucester County, Virginia school district. G.G. is a transgender male who sought permission to use the boys’ restroom. After much public debate, the school board adopted a resolution that, with respect to facilities that are reserved for a single gender, e.g., bathrooms and locker rooms, students use the facility corresponding to their physiological gender. However, the high school also announced it would install three single-stall unisex bathrooms throughout the school for those students, including those that are transgender, who desire additional privacy or who require alternative arrangements. Despite these efforts at accommodation, a well-known activist lawyer emailed the federal Department of Education, seeking guidance or rules relevant to the school board’s resolution.
The Department’s Office of Civil Rights responded with a letter, stating unequivocally that “Title IX…prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity.” Relying on the Department’s letter, G.G. filed suit against the school board in June, 2015. Following the District Court’s denial of G.G.’s request for preliminary injunction, the Fourth Circuit reversed the District Court. It deferred to the views of the relatively low-level Department of Education officials who wrote the letter, finding that Title IX’s prohibition of discrimination on the basis of sex, enacted in 1972, now includes gender identity. The school board’s request for review was granted by the United States Supreme Court, which previously stayed the Fourth Circuit’s ruling.
At issue in this case is not the transgender status of G.G. or whether or how transgender students ought to be accommodated. In fact, all parties involved in the case agree that every student, irrespective of race, nationality, religion, sexual preference, or gender identity, deserve respect and, in some cases, reasonable accommodations.
What this case is about is the deference courts should afford an agency’s novel interpretation of Title IX, adopted without even the public participation that accompanies formal rule-making. It is about the rule of law and who gets to make changes in the law that, for better or worse, would fundamentally alter education policy nationwide – the people’s elected representatives or unelected and low-level bureaucrats.