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Gloucester County School Board v. G.G.

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Supreme Court of the United States
Gloucester County School Board v. G.G.
Docket number: 16-273
Term: 2016
Court: United States Supreme Court
Important dates
Argument: Unargued
Decided: March 6, 2017
Court membership
Chief Justice John G. Roberts • Anthony Kennedy • Clarence Thomas • Ruth Bader Ginsburg • Stephen Breyer • Samuel Alito • Sonia Sotomayor • Elena Kagan


Gloucester County School Board v. G.G. is a case docketed for argument during the October 2016 term of the U.S. Supreme Court, Argument in the case was scheduled for March 28, 2017; however, on March 6, 2017, the judgment in the case was vacated and the case was remanded to the United States Court of Appeals for the 4th Circuit in consideration of new guidance issued by the U.S. Department of Justice and the U.S. Department of Education on February 22, 2017.

HIGHLIGHTS
  • The case: Gavin Grimm, a transgender minor, sought to use the bathroom facilities at the public school in which he is enrolled based on the gender with which he identifies. The Gloucester County School Board's (Board's) policy limited bathroom use by students to facilities that correspond with their biological gender only.
  • The issue: What degree of deference, if any, must a school board afford to the U.S. Department of Education's interpretation and regulation of Title IX in relation to a school board policy on the use of school bathroom facilities?
  • The outcome: On March 6, 2017, the court vacated and remanded the judgment of the United States Court of Appeals for the 4th Circuit.


    • In brief: Gavin Grimm (G.G.), a transgender minor, was prohibited by a Gloucester County School Board (Board) policy from using the school bathrooms corresponding to the gender with which G.G. identifies. The policy, first proposed in November 2014 and adopted in December 2014, was introduced by a Board member after learning that school officials had permitted G.G. to use the bathroom of his gender identity preference, without incident, for a nearly seven week-period preceding the November 2014 proposal. In January 2015, the U.S. Department of Education's Office of Civil Rights (OCR) published an opinion letter in which the Department interpreted a Title IX regulation for separate toilet facilities as applied to transgender students in this way, "When a school elects to separate or treat students differently on the basis of sex ... a school generally must treat transgender students consistent with their gender identity." In June 2015, G.G. sued the Board. A federal district court dismissed G.G.'s Title IX claim against the Board and denied his motion for a preliminary injunction towards the policy, but the Fourth Circuit Court of Appeals reversed in part, vacated in part, and remanded the district court's judgment, holding that the district court did not afford appropriate deference to the Department of Education's regulations and committed legal error in using the wrong evidentiary standard governing preliminary injunction hearings. Argument in the case was scheduled for March 28, 2017; however, on March 6, 2017, the judgment in the case was vacated and the case was remanded to the United States Court of Appeals for the 4th Circuit in consideration of new guidance issued by the U.S. Department of Justice and the U.S. Department of Education on February 22, 2017.

    You can review the Fourth Circuit's opinion here.[1]

    Click on the tabs below to learn more about this Supreme Court case.

    Case

    Background

    This is a case about degree of deference, if any, a school board must afford to the U.S. Department of Education's interpretation and regulation of Title IX in relation to a school board policy on the use of school bathroom facilities.

    Title IX of the Education Amendments of 1972, codified as 20 U.S.C. § 1681(a) provides that, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."[2] Through regulations used in implementing Title IX, here 34 C.F.R. 106.33, the U.S. Department of Education (Department) allows for "separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."[3] Regarding the application of 106.33 towards transgender students, James A. Ferg-Cadima, then-acting deputy assistant secretary for policy in the Department's Office for Civil Rights (OCR), issued a letter dated January 7, 2015, in which the Department noted, "When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities. OCR refrains from offering opinions about specific facts, circumstances, or compliance with federal civil rights laws without first conducting an investigation ... Nevertheless, it may be useful to be aware that in response to OCR's recent investigations of two complaints of gender identity discrimination, recipients have agreed to revise policies to make clear that transgender students should be treated consistent with their gender identity for purposes of restroom access."[4]

    Gavin Grimm (G.G.), the respondent, was a transgender minor and a student in a public high school operated by the Gloucester County School District of Virginia. In 2014, prior to the start of his sophomore year, G.G. and his mother informed school officials that he was a transgender male. School officials "were supportive and took steps to ensure that he would be treated as a boy by teachers and staff. Later, at G.G.'s request, school officials allowed G.G. to use the boys' restroom. G.G. used this restroom without incident for about seven weeks."[1] Word of G.G.'s use of the boys' bathroom, however, "excited the interest of others in the community."[1] In response to request to bar G.G. from using the boys' bathroom, in November 2014, a member of the Gloucester County School Board (Board) introduced a resolution entitled "Discussion of Use of Restroom/Locker Room Facilities." That resolution read,[1]

    “

    Whereas the GCPS [i.e., Gloucester County Public Schools] recognizes that some students question their gender identities, and
    Whereas the GCPS encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and
    Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore
    It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility. [5]

    		”

    After an open-comment period during the November 2014 meeting in which the resolution was introduced, the Board postponed a vote on the resolution to the December 2014 meeting. After an open-comment period in the December 2014 meeting, the Board adopted the resolution as policy (Policy) on December 9, 2014. G.G. claimed that being required to use the girls' bathroom would "'cause severe psychological distress' ... and would be incompatible with his treatment for gender dysphoria." As a corollary to the Policy, the Board announced measures to enhance the general privacy of all students, including the construction of single-stall unisex restrooms that would be available to all students. Nonetheless, G.G. alleged that these measures caused psychological and physical harms, including stigmatization, "severe and persistent emotional trauma" and, in avoiding the restrooms entirely at school, "multiple urinary tract infections."[1]

    On June 11, 2015, G.G. sued the Board in a federal district court. G.G. sought an injunction permitting him to use the boys' restroom, alleging that the Board's Policy impermissibly discriminated him in violation of both Title IX and the Equal Protection Clause of the Fourteenth Amendment. The Board filed a motion to dismiss the lawsuit. In July 2015, the district court held a preliminary hearing at which the court verbally dismissed G.G.'s Title IX claim and denied his request for a preliminary injunction. The court did not rule on the Board's motion to dismiss G.G.'s equal protection claim. These bench rulings were followed with written orders dated September 4, 2015 (denying the injunction) and September 17, 2015 (dismissing G.G.'s Title IX claim). The district court reasoned that Title IX prohibits discrimination on the basis of sex, "but not on the basis of other concepts such as gender, gender identity, or sexual orientation," and that 34 C.F.R. 106.33 permits schools to provide separate restrooms on the basis of sex. Accordingly, the court held G.G. failed to show the Board impermissibly discriminated against him under Title IX. In rejecting G.G.'s request for an injunction, the court held that G.G. "had not made the required showing that the balance of equities was in his favor" and that "requiring G.G. to use the unisex restrooms during the pendency of this lawsuit was not unduly burdensome and would result in less hardship than requiring other students made uncomfortable by G.G.’s presence in the boys’ restroom to themselves use the unisex restrooms."[1]

    G.G. appealed the district court's opinion to the United States Court of Appeals for the 4th Circuit. G.G. asked the court to reverse the court's dismissal of his Title IX claim, grant the injunction that he sought, and to assign the case to a different district court judge "based on comments made by the district judge during the motion hearing." The Board asked the circuit court to affirm the lower court rulings and to dismiss G.G.'s Fourteenth Amendment equal protection claim as without merit.[1]

    Judge Henry Floyd authored the opinion for a three-judge panel of the Fourth Circuit. The case was decided on April 19, 2016. In a footnote, Judge Floyd announced that the court would not preemptively dismiss G.G.'s equal protection claim prior to full consideration by the district court below. The remaining claims made in the appeal were decided as follows:

    Dismissal of G.G.'s Title IX claim
    The panel reversed the district court's dismissal of G.G.'s Title IX claim. The panel relied on the U.S. Supreme Court's decision in Auer v. Robbins, which requires "that an agency's interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute ... Agency interpretations need not be well-established or long-standing to be entitled to deference. They must, however, 'reflect the agency's fair and considered judgment on the matter in question.'" Such deference is referred to as "Auer deference." Auer deference is not afforded, however, when an agency's interpretation of its own ambiguous regulation "conflicts with a prior interpretation, when it appears that the interpretation is no more than a convenient litigating position, or when the interpretation is a post hoc rationalization."[1] These factors for withholding Auer deference are known as "Christopher grounds,", named for the Supreme Court's ruling in Christopher v. Smithkline Beecham Corp.[1] Here, the panel held that the district court failed to give Auer deference to the Department's regulation, namely 34 C.F.R. 106.33. The panel held that the Department's interpretation was not "plainly erroneous or inconsistent with the text of the regulation" and that the Department's interpretation did not conflict with a prior interpretation and was neither a convenient litigating position nor a post hoc rationalization." The panel concluded there were no Christopher grounds to withhold Auer deference. As such, the district court was reversed for failing to give Auer deference to the Department's interpretation of its own ambiguous regulation.[1]

    Denial of G.G.'s request for a preliminary injunction The panel vacated and remanded the district court's denial of a preliminary injunction, holding that the court failed to use the proper evidentiary standard in evaluating G.G.'s motion for an injunction. The panel noted that preliminary injunctions "are governed by less strict rules of evidence," stating,[1]

    “

    The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. [5]

    		”

    The panel held that "because the district court evaluated G.G.’s proffered evidence against a stricter evidentiary standard than is warranted by the nature and purpose of preliminary injunction proceedings to prevent irreparable harm before a full trial on the merits, the district court was 'guided by erroneous legal principles.'" Accordingly, the panel vacated the district court's denial of G.G.'s motion for a preliminary injunction and remanded the case back the district court in order to adjudicate G.G.'s motion under the appropriate evidentiary standard.[1]

    Motion to reassign the case to a new district judge
    The panel rejected G.G.'s request to reassign the case to another federal district judge, holding that although "the district court did express opinions about medical facts and skepticism of G.G.’s claims, the record does not clearly indicate that the district judge would refuse to consider and credit sound contrary evidence. Further, although the district court has a distinct way of proceeding in court, the hearing record and the district court’s written order in the case do not raise in our minds a question about the fundamental fairness of the proceedings, however idiosyncratic."[1]

    Petitioners' challenge

    The Gloucester County School Board (Board) challenged the Fourth Circuit's judgment claiming that the Board's Policy regarding school bathrooms constituted discrimination in violation of Title IX.[6]

    Certiorari granted

    On July 13, 2016, the Gloucester County School Board (Board) filed a application with the Chief Justice, who referred the application to the full court, to recall and stay the April 2016 holding of the Fourth Circuit Court of Appeals. The court granted the application pending a timely appeal for certiorari. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan noted they would deny the application.[7] On August 29, 2016, the Board filed a petition for a writ of certiorari. The U.S. Supreme Court granted the Board's certiorari request on October 28, 2016, limiting argument to questions 2 and 3 of the petition.

    Arguments


    Questions presented

    Questions presented:
    • Whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
    • Whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must 'generally treat transgender students consistent with their gender identity,' should be given effect?[6]


    Outcome

    On March 6, 2017, the judgment in the case was vacated and the case was remanded to the United States Court of Appeals for the 4th Circuit. The court issued the following order:[8]

    “

    16-273 GLOUCESTER COUNTY SCH. BD. V. G. G. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the 4th Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017. [5]

    		”

    Filings

    The court granted the Board's certiorari request on October 28, 2016, limiting argument to questions 2 and 3 of the petition.

    Certiorari filings

    Parties' filings

    • Gloucester County School Board (Board), the petitioner, filed a petition for certiorari on August 29, 2016.

    Amicus curiae filings

    • Brief of 8,914 students, parents, grandparents and community members et al.
    • Brief of the Cardinal Newman Society et al.
    • Brief of the Eagle Forum Foundation and Legal Defense Fund
    • Brief of Educators in 46 states
    • Brief of the Liberty, Life, and Law Foundation et al.
    • Brief of Members of Congress
    • Brief of the National Organization for Marriage and the Center for Constitutional Jurisprudence
    • Brief of two members of the U.S. Commission on Civil Rights, Gail Heriot and Peter Kersanow, as private citizens
    • Brief of the Women's Liberation Front

    See also

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 U.S. Court of Appeals for the Fourth Circuit, G.G., by his next friend and mother, Deirdre Grimm v. Gloucester County School Board, April 19, 2016
    2. ↑ Cornell University's Legal Information Institute, "20 U.S. Code § 1681 - Sex," accessed October 30, 2016
    3. ↑ Cornell University's Legal Information Institute, "34 CFR 106.33 - Comparable facilities," accessed October 30, 2016
    4. ↑ Lambda Legal, "U.S. Department of Education, Office for Civil Rights, letter from James A. Ferg-Cadima to Redacted - PII," January 7, 2015
    5. ↑ 5.0 5.1 5.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ 6.0 6.1 Supreme Court of the United States, Gloucester County School Board v. G.G. - Petition for a writ of certiorari, filed August 29, 2016
    7. ↑ SCOTUSBlog.com, "Gloucester County School Board v. G.G.," accessed October 29, 2016
    8. ↑ Supreme Court of the United States, "Order list," March 6, 2017
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