The Supreme Court of the United States somewhat unexpectedly agreed on Oct. 28, 2016, to take on the question of whether Title IX requires public school districts to allow transgender students to use single-sex restrooms corresponding to their gender identity rather than that of their birth sex. The issue has generated widespread controversy between the federal government (which has taken the position that it does) and several states that have taken the opposite view. The Court also will have the opportunity to address a split in the lower federal courts on this issue. In the case that the Court will review, Gloucester County School Board v. G.G., the U.S. Court of Appeals for the Fourth Circuit agreed with the Obama administration that Title IX requires this sort of accommodation for transgender students. In contrast, a federal trial court in Texas disagreed and issued an order purporting to prohibit the Departments of Education and Justice from enforcing their interpretation of Title IX. Because of this level of controversy, the Court’s decision to address this issue is welcome, albeit surprising to some. Many commentators expected the High Court to avoid controversial issues until a ninth justice was confirmed.
The Supreme Court also agreed to take up the related question of whether the Fourth Circuit properly deferred to an informal Department of Education interpretation of Title IX. The Court, however, did not grant petitioners’ request that it review its prior decision that more formal agency interpretations of their own regulations should be granted some deference by the federal courts. This is significant because some justices have previously expressed a desire to revisit that issue. Because of the amount of guidance issued in recent years, that broader issue would have huge implications for public school districts.
The Court’s decision to address the meaning of Title IX in this context should give public school districts, as well as colleges and universities, greater clarity of the requirements of federal law in this area. Of course, many state and local laws, as well as school district policies, already provide additional guidance on this issue.
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.