Gloucester County School Board v. G. G.

Whether an agency’s interpretation of Title IX of the Education Amendments Act of 1972 should be afforded deference pursuant to Auer v. Robbins, when that interpretation requires schools to allows transgender students the use of facilities on the basis of their gender identity and the interpretation was unpublished and issued solely in response to the present controversy?

Petitioner Gloucester County School Board passed a policy that banned Respondent G. G., a transgender boy, from using the boys’ restroom at his high school. Respondent sued Petitioner, seeking an injunction allowing him to use the boys’ restroom and claiming that Petitioner violated Title IX and the Equal Protection Clause. The District Court denied the injunction, dismissed Respondent's Title IX claim, and withheld judgment on the Equal Protection issue. The Department of Education’s regulations implementing Title IX permit “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.” In relation to transgender students, the Department’s Office of Civil Rights interpreted that schools must generally treat transgender students consistent with their gender identity. On appeal, the Fourth Circuit held that the Department’s interpretation of its regulation should be given controlling weight, pursuant to Auer v. Robbins, and reversed the dismissal of the Title IX claim. The Fourth Circuit also found that the District Court abused its discretion when it used a stricter evidentiary standard than necessary to deny the injunction. In its petition for a writ of certiorari, Petitioner argues that the Court should reconsider the Auer deference framework, but if the framework survives, then the Court should resolve disagreements over when the framework applies. Petitioner argues that the Department’s interpretation was unpublished and was issued solely in response to Respondent's dispute. Petitioner also expressed the need to clarify the split amongst lower courts over whether Auer should apply in these circumstances. Finally, Petitioner argues that the Department’s interpretation of Title IX is wrong because “gender identity” is mentioned nowhere in Title IX and therefore, it should not be binding on anyone.