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SCOTUS Agrees to Review Transgender Bathroom Challenge

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SCOTUS Agrees to Review Transgender Bathroom Challenge

The U.S. Supreme Court on Friday agreed to step into the national controversy over transgender rights by taking up a Virginia school board’s effort to block a transgender boy’s use of the boys’ high school bathroom.

The justices said they will hear arguments in Gloucester County School Board v. G.G. and decide whether the Department of Education’s interpretation of Title IX of the Education Amendments of 1972 and the agency’s own regulations are correct.

The student, Gavin Grimm, began his senior year this fall at Gloucester High School. He was assigned the identity of a girl at birth but now identifies as a boy. In October 2014, the school principal allowed him to use the boys’ bathroom. However, soon afterwards, the local school board passed a policy banning him from the boys’ bathroom.

Grimm, referred to in the court record as G.G., sued the school board, claiming that its policy discriminated against him in violation of Title IX and the Constitution’s equal-protection clause. Title IX prohibits sex discrimination in education unless authorized by an exception in the statute or regulations.

On April 9, a 2-1 panel of the U.S. Court of Appeals for the Fourth Circuit reversed a district court decision dismissing Grimm’s Title IX claim and denying his request for a preliminary injunction. The panel held that the district court erred in refusing to give Auer deference to the Department of Education’s interpretation of a 1975 regulation allowing schools to provide “separate toilet, locker room, and shower facilities on the basis of sex.” The department had issued a guidance letter saying that Title IX’s prohibition on discrimination included “gender identity” and that Title IX funding recipients must “generally treat transgender students consistent with their gender identity.”

Auer deference refers to the Supreme Court’s 1997 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.

The justices on Friday limited arguments to two questions: whether deference should be given to the department’s guidance letter, and regardless of any deference, was the department’s interpretation of Title IX and its implementing regulation correct.

“In light of the right to bodily privacy, federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities,” said Gary McCaleb, senior counsel with Alliance Defending Freedom, an amicus supporting the school board. “The Supreme Court should reverse the Fourth Circuit’s ruling, which is out of step with the law and previous federal court precedent.”

But Josh Block, senior staff attorney with the American Civil Liberties Union, counsel to Grimm, said in a statement: “These sorts of discriminatory policies stigmatize and isolate transgender students like Gavin just because of who they are. We look forward to presenting Gavin’s case to the Supreme Court as the next step in the fight to ensure fairness and equality for trans people across the country.”

The case is one of at least three challenges involving transgender individuals’ use of restroom facilities. A federal district court in North Carolina is hearing a challenge to that state’s HB 2 bathroom bill, and a number of states have sued the Departments of Justice and Education in Texas district court over the departments’ recent guidances on the issue. That court issued a nationwide injunction against the policy.

The court added five cases, including the transgender case, to the term’s argument docket. The justices continued their strong interest in arbitration by agreeing to hear Kindred Nursing Centers v. Clark.

The nursing centers, represented by Mayer Brown’s Andrew Pincus, ask whether the Federal Arbitration Act pre-empts a state-law contract rule that requires a power of attorney to expressly refer to arbitration agreements before the attorney can bind her principal to an arbitration agreement.

And the justices will hear Packingham v. North Carolina, a First Amendment challenge to a state law that makes it a felony for anyone on the state’s registry of former sex offenders to access a wide array of websites—YouTube, Facebook, etc.—if the site allows minors to have accounts.

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