The transgender Gloucester School Board v. G.G. case (SCOTUS Docket Number 16-273) exemplifies the importance of our elections and demonstrates the interplay between the executive and judicial branches of government during the interpretation of law.
Title IX prohibits discrimination on the basis of sex. Therefore, its implementing CFR regulation permits “separate toilet, locker rooms, and shower facilities on the basis of sex,” if the facilities are “comparable” for students of both sexes. In May 2016, a Department of Education official under the Obama Administration opined in an unpublished letter that Title IX’s prohibition of sex discrimination “include[s] gender identity,” and that a funding recipient providing sex-separated facilities under the regulation “must generally treat transgender students consistent with their gender identity” versus biological gender at the moment of birth. The Fourth Circuit afforded this letter controlling deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997), thereby requiring funding recipients to allow transgender students to use the bathroom of their gender identity.
However, on February 22, 2017, under the Trump Administration, the Department of Education and Department of Justice opined that Title IX’s prohibition of sex discrimination did not include gender identity, but rather only prohibited sex discrimination based on gender at the moment of birth (thereby NOT requiring the School Board to accommodate a transgender student). On February 23, 2017, the Clerk of SCOTUS requested that the Petitioner and Respondent file letters with SCOTUS advising on how the case should proceed considering the February 22, 2017, DOE and DOJ announcement. Despite both the Petitioner and Respondent requesting that oral arguments proceed with SCOTUS, SCOTUS Vacated the Judgment and Remanded the case back to the 4th Circuit for further consideration in light of the guidance document issued by the DOE and DOJ on February 22, 2017. Now, as a side note, SCOTUS had already entered a Temporary Injunction against the Respondent in 2016 preventing him from using the men’s bathroom until SCOTUS made a final decision.