Virginia School Board Argues for Right to Discriminate on Basis of Gender Identity

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Analysis Law and Policy

Virginia School Board Argues for Right to Discriminate on Basis of Gender Identity

Jessica Mason Pieklo

In a petition filed with the U.S. Supreme Court, the Gloucester County School Board argues federal law gives it the right to discriminate against transgender students.

Reading the Gloucester County School Board’s certiorari petition to the U.S. Supreme Court filed last week, you’d hardly know the case was about Gavin Grimm, a transgender student who wants to use a bathroom consistent with his gender identity.

Instead, the school board, which adopted a policy mandating students use bathrooms consistent with their “biological sex” in response to Grimm’s request, has framed this case as a federal assault on the integrity of a local school board’s ability to protect the privacy of its students.

Its students other than Grimm, that is.

There is a good chance the issue of segregation by gender identity versus biological sex in certain situations, including schools and workplaces, will land before the Roberts Court, even if it declines to take up Grimm’s case specifically. So it is very important we do not write him out of the issue the way the school board has. Because although this case is about the ability of federal agencies to interpret the statutes they are charged with enforcing, it is much more about conservatives making a legal argument that they have a right to discriminate because they have a fundamental religious objection to transgender people.

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But still, what the Gloucester County School Board wants the Supreme Court to focus on is a thread of legal authority that gives federal agencies like the Department of Education leeway in interpreting the federal statutes they are charged with enforcing. That line of cases, known as the Auer/Seminole Rock doctrine, has been the target of conservative ire since the Clinton administration, when Democratic agency initiatives began expanding.

Under Auer/Seminole Rock, if an agency’s regulations are ambiguous, courts will defer to that agency’s own interpretation of the regulation. That’s true even if the agency’s own interpretation of the regulation has evolved over time—so long as the regulation itself hasn’t not changed, the interpretation doesn’t need to be subject to any procedures allowing the public and interested groups to weigh in.

The statute at the heart of the Grimm case is Title IX of the Education Amendments of 1972. Enacted more than 40 years ago, Title IX and its implementing regulation allow, among other things, schools to provide “separate toilet, locker rooms, and shower facilities on the basis of sex.” But as societal and medical understandings of the differences between gender and sex have evolved, so too did the legal interpretation of the magic words at issue here: “on the basis of sex.” Ultimately, the Obama administration made a series of executive agency actions that uniformly stated discriminating against someone on the basis of their gender identity—like the school board is accused of doing to Grimm—amounts to sex discrimination.

In Grimm’s case, the Fourth Circuit relied on Auer/Seminole Rock in finding the Gloucester School Board had violated Title IX, because its bathroom policy conflicted with the Department of Education interpretation of the statute.

This kind of agency action—which also includes similar decrees from the Equal Employment Opportunity Commission about Title VII —has driven religious conservatives up the wall. This is in part because, as they specifically stated in another recent lawsuit challenging the provision of the Affordable Care Act that expressly prohibits anti-transgender discrimination, they firmly believe that biological sex is unalterable and gender dysphoria is a medical myth. They then argue that those beliefs give them the legal shield to discriminate against transgender people in nearly every public setting.

The school board in Grimm has not gone quite so far as to launch a religious objection to Grimm’s existence, but it has made parallel arguments. While Grimm is mostly written out of the school board’s petition, when he is discussed, it is in the context of complaints by other parents that they were uncomfortable with Grimm’s very person. “Immediately after G.G. started using the boys’ restrooms, the Board began receiving complaints from parents and students who regarded G.G.’s presence in the boys’ room as an invasion of student privacy,” the cert petition reads. “Parents also expressed general concerns that allowing students into restrooms and locker rooms of the opposite biological sex could enable voyeurism or sexual assault.”

According to the National Center for Transgender Equality, a nonprofit transgender rights advocacy organization, 75 percent of transgender youth feel unsafe at their schools, either due to peer-to-peer bullying or discriminatory policies like the one at issue in Grimm. Transgender people are more likely to be the targets of violence and sexual assault rather than the perpetrators. But if you were to only read the Gloucester County Supreme Court brief, you would see none of that information. Instead, you would see only complaints about the Obama administration forcing other parents’ children to possibly pee in the same bathroom as Gavin Grimm. At some point. Maybe.

Late last term, the Roberts Court turned away a different challenge to the Auer/Seminole Rock doctrine in a case involving student loan financing. Many court watchers noticed it was an important move by the Court, given the emergence of more and more transgender discrimination cases in the federal courts. But last term was an eternity ago in jurisprudential politics. Given the zeitgeist of transgender rights in the law, it seems more likely than ever the Court will take up an Auer/Seminole Rock challenge now, and conservatives are hoping that wedging the privacy rights of students against each other is the perfect vehicle to do so.

School boards, conservative governors, and attorneys general can dress up their transphobia as a small-government crusade all they want, but that dressing wears real thin real quick. So far the federal courts have mostly agreed and supported the Obama administration. Should Senate Republicans get around to confirming Merrick Garland to replace the late Justice Antonin Scalia during a lame duck session, as they have started to hint they would, that moderate tilt back to center makes it look more and more likely that the Supreme Court would support federal agencies as well.

Attorneys for Grimm have nearly a month to respond to the Gloucester County petition.The Supreme Court is not likely to make a decision on whether it will hear the case until later in the fall.