Bench Memos

Law & the Courts

Fourth Circuit Inflicts Sex Change on Title IX—Part 2

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.

Most Popular


G-File Mailbag: The Results of a Bad Idea

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Including those of you just standing there eating Zarg nuts), I had a bad idea. It wasn’t a terrible idea, like asking a meth addict ... Read More
Politics & Policy

How Democrats Can Blow It in 2020

Donald Trump probably can’t win the 2020 presidential election, but the Democrats can lose it. What I mean is that in a contest between Trump and a generic Democrat, Trump would almost surely lose if the current political climate holds through 2020. According to a Fox News poll this week, 38 percent of ... Read More
Politics & Policy

The Collusion Scenario

It has become an article of faith in some quarters on the right -- well, most -- that the Mueller investigation has found no evidence of collusion with Russia and has accordingly shifted gears to process crimes like lying to the FBI or obstruction of justice. Having decided that this must be true, many have ... Read More

Democrats’ Border-Barrier Flip-Flop

Is steel more moral than concrete? House Democratic leader Nancy Pelosi of California said last week that she and other Democrats consider a border wall “immoral.” But some of the same Democrats who decry President Donald J. Trump’s proposed concrete wall as a 30-foot-tall human-rights violation actually ... Read More