School board, sued by transgender student, asks for Supreme Court review in bathroom case

Published 6:00 am Tuesday, August 30, 2016

The Gloucester County, Virginia, school board asked the Supreme Court on Monday to find that the U.S. Department of Education does not have the authority to tell public schools they must let transgender students use bathrooms that align with their gender identity.

The board’s petition comes as school districts across the country grapple with how to accommodate transgender students in the face of conflicting guidance from courts, the federal government and, in some cases, state legislatures that have passed laws requiring people to use public restrooms that coincide with the sex on their birth certificates.

The justices have already given Gloucester schools a temporary reprieve in the case, having stayed a lower court’s decision that 17-year-old student Gavin Grimm, who was born female but identifies as male, should be allowed to use the boys’ bathroom when his senior year starts next week.

In the Supreme Court’s unusual Aug. 3 order granting the stay, Justice Stephen G. Breyer said he was joining the conservative justices as a “courtesy” that would preserve the status quo while considering the school board’s request for a review of the case. That decision could still be months away.

Grimm sued the school board, alleging that the policy was discriminatory and violates his civil rights.

The U.S. Court of Appeals for the 4th Circuit sided with him in April, ruling that his case could move forward and deferring to the Obama administration’s position that Title IX, the federal law banning sex discrimination in public schools, protects the rights of transgender students to use school bathrooms that align with their gender identity.

A month after the 4th Circuit decision, the U.S. Department of Education issued guidance to the nation’s public schools, directing them to allow transgender students to use bathrooms that align with their gender identity. It sparked a backlash and a lawsuit by several states that argued the administration had overstepped its authority. A federal judge in north Texas issued a preliminary injunction this month blocking the department’s guidance.

The Gloucester board’s petition to the court says the department’s position “presents an extreme example of judicial deference to an administrative agency’s purported interpretation of its own regulation.” It was developed by “a relatively low-level official in the Department of Education” without proper notice and comment, said the petition filed by the board’s lawyer, Kyle Duncan.

The petition said the case provides the court the opportunity to reexamine a 1997 precedent, Auer v. Robbins, that affords deference to an agency’s interpretation of its regulations. It has been criticized by several of the court’s conservatives, but the court earlier this year turned down a chance to revisit it.

Duncan said the court should accept the Gloucester case to resolve “once and for all the current nationwide controversy generated by these directives.”

Transgender students say that using bathrooms that correspond with their gender identity is a civil right and critical to protect their well-being. But some parents, school board members and state legislatures have pushed back, calling for laws and policies that require students to use bathrooms aligned with the sex on their birth certificates. They argue that the rules are necessary to safeguard privacy and traditional values.