Fourth Circuit Inflicts Sex Change on Title IX—Part 2

by Ed Whelan

The Fourth Circuit’s reasoning (see point 4 in my Part 1 post) is demonstrably wrong.

Both the majority and the Obama administration purport to agree that Title IX allows schools receiving federal funds to maintain separate toilet, locker room, and shower facilities for males and females. Their position is that individuals who have a gender identity that is different from their biological sex are entitled under Title IX to use the facilities “consistent with their gender identity.”

But if “on the basis of sex” in Title IX includes “on the basis of gender identity,” the Department of Education’s 1975 regulation that recognizes that Title IX allows schools to “provide separate toilet, locker room, and shower facilities on the basis of sex” collapses into incoherence.

If the majority and the Obama administration are right that a boy who identifies as female has a right under Title IX to use the girls’ bathrooms, locker rooms, and shower facilities, then it would be discrimination on the basis of gender identity to bar a boy who identifies as male from having the same access. After all, the difference between the two biological males is that they have different gender identities. How could one of the males be allowed to use the girls’ facilities and the other be barred from doing so if Title IX bars discrimination on the basis of gender identity?

In short, the Department of Education’s 1975 regulation (which is still operative) is incompatible with a reading of Title IX that would extend its bar on sex discrimination to discrimination on the basis of gender identity, for such a ruling would nullify the very protection that regulation recognizes or provides.

The majority is therefore wrong to invoke so-called Auer deference. As the majority correctly explains, under the (controversial and contested) Auer rule, the courts must accept an agency’s interpretation of its own ambiguous regulation unless the agency’s interpretation is plainly erroneous or inconsistent with the regulation or governing statute. The Department’s January 2015 letter is not entitled to Auer deference for the simple reason that the interpretation offered there of its 1975 regulation is plainly erroneous and inconsistent with that regulation. In other words, when intelligently read, the 1975 regulation is not ambiguous in any relevant respect.  

(I won’t address the further question whether something as informal and insubstantial as a letter from a deputy assistant secretary—or, rather, an acting deputy assistant secretary—is the sort of thing that would be entitled to Auer deference in any event.)

More to come in a Part 3 post.

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