WILL Press Release | WILL’s Center for Competitive Federalism Seeks Supreme Court Review of Obama Administration’s “One-Size-Fits-All” Guidance on Student Bathrooms, Locker Rooms

October 12, 2016 – Milwaukee, WI – The Wisconsin Institute for Law & Liberty, through its newly formed Center for Competitive Federalism, recently filed an amicus curiae brief in support of the Petitioner inGloucester County School Board v. G.G.  The case is pending before the United States Supreme Court on the School Board’s petition for writ of certiorari.

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 is now seeking review in the United States Supreme Court, which 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 our 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.

Director of CCF Mario Loyola commented that, “WILL and its new Center have an interest in the United States Supreme Court’s determination of the validity of the deference shown the unelected bureaucrats at the Department of Education.  In addition, it is imperative that the court properly determines whether the executive branch guidance documents at issue in this case can have coercive effects on the states, forcing them to enact policies outside the federal government’s constitutional powers.  We argue the answer under the Constitution is a resounding ‘no’.”

“We created the Center for Competitive Federalism 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.  “The treatment of transgender students and the privacy interests of students in general are important issues.  But that means it is imperative that they be addressed in a way that is consistent with the law as it is and that any changes in that law be enacted through a democratic process and not bureaucratic decree.  Particularly given the novelty and complexity of the issues involved, respect for the role of the states as laboratories of democracy and the particular needs of local communities must be respected.  Whatever turns out to be the best way to handle these issues is more likely to enjoy broad public support if it is the public, consistent with respect for the rights of all, that makes it.”

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