Fourth Circuit Inflicts Sex Change on Title IX—Part 1

by Ed Whelan

Last week I highlighted the divided ruling of a Fourth Circuit panel that held, in G.G. v. Gloucester County School Board, that a Virginia school discriminated “on the basis of sex” in violation of Title IX when it barred “G.G.,” a “transgender boy”—that is, a girl who identifies as a boy—from using the boys’ restroom. Let’s now take a deeper look.

In this post, I aim to present a concise account of the relevant background and the majority’s reasoning. In a follow-up post or two, I will explain why I believe that the majority is clearly wrong.

1. Title IX, enacted in 1972, provides generally that no person “shall, on the basis of sex, … be subjected to discrimination under any education program or activity receiving Federal financial assistance.” (Emphasis added.) Title IX sets forth a number of exceptions to that general rule, including (in section 1686) that it does not bar “maintaining separate living facilities for the different sexes.”

2. Implementing Title IX, a Department of Education regulation (“section 106.33”), adopted in 1975, states that a school “may provide 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.” (Ponder for a moment what the state of affairs was between 1972 and 1975; I’ll return to that in the next post.)

3. In a January 2015 letter that it evidently sent to G.G. and various other recipients, an acting deputy assistant secretary in the Department’s Office for Civil Rights stated:

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. 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. (Emphasis added.)

4. The Fourth Circuit majority (Obama appointee Henry F. Floyd, joined by Obama appointee Andre M. Davis) determined that the Department’s regulation, “plainly … permits schools to provide separate toilet, locker room, and shower facilities for its male and female students” and “to exclude males from the female facilities and vice-versa.” (Slip op. at 19-20.) But, the majority claimed:

Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or a female for the purpose of access to sex-segregated restrooms. [Slip op. at 20.]

Therefore, “the Department’s interpretation [of its regulation in the January 2015 letter] is entitled to Auer deference unless the Board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.” (Slip op. at 20.) (I’ll discuss Auer deference in the next post.) From its brief consideration of the definition of “sex” in two dictionaries “from the drafting era,” the majority concludes:

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge. We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation.  [Underlining in original; italics added; footnote omitted.]

5. The majority says that it agrees with dissenting judge Paul Niemeyer (whose dissent I quoted from extensively in my previous post) that the word “‘sex’ should be construed uniformly throughout Title IX and its implementing regulations.” (Slip op. at 26.) As we shall see, its reasoning is in fact incompatible with that elementary proposition.

6. The majority also states that because G.G. “does not seek here, and never has sought, use of the boys’ locker room” and that “Only restroom use is at issue in this case.” (Slip op. at 7 n. 2.) As we shall see, those hedged statements can’t detract from the reality that the majority’s reasoning dictates the same result for locker rooms and showers.

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