On Monday, federal district judge Algenon L. Marbley (of the Southern District of Ohio) issued a preliminary injunction ordering the Highland Local School District to treat an 11-year-old boy “as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.” (H/t Daniel Horowitz.)
Marbley actually doesn’t even directly state that the pseudonymous plaintiff is biologically male, but instead says only that he “was assigned male at birth” and is now a “transgender girl” (i.e., a boy who identifies as a girl). Marbley concludes that the plaintiff is likely to succeed both on his Title IX claim and on his Equal Protection claim.
Marbley’s Title IX analysis is thoroughly confused: He purports to be affording so-called Auer deference to the Department of Education’s interpretation of its own rules. But beyond the fact that those rules, however interpreted, are in relevant respect permissive rather than restrictive, Marbley somehow leverages Auer deference into an interpretation of Title IX itself, and not just the Department’s rules: “The Court finds that the term “sex” in Title IX and its implementing regulations regarding sex-segregated bathrooms and living facilities is ambiguous and thus presumptively entitled to Auer deference.” (Citation omitted.) So much for the fact that the Department’s informal interpretation of Title IX clearly wouldn’t qualify for the “Chevron deference” that courts accord to certain formal agency interpretations of the statutes they administer.
Marbley also blithely dismisses the fact that the Supreme Court stayed and recalled the Fourth Circuit’s mandate in G.G. v. Gloucester County School Board and stayed the preliminary injunction in that case. Marbley instead relies on G.G. to take an action identical to that which the Supreme Court blocked.
(On the Auer issue, I’ll highlight that just yesterday law professors Jonathan Adler, Richard Epstein, and Michael McConnell and the Cato Institute filed an amicus brief in support of Gloucester County’s pending certiorari petition.)
On his Equal Protection analysis, Marbley races to find that “transgender status is a quasi-suspect class” subject to heightened scrutiny, but never stops to notice that a bathroom policy that is based on biological sex does not classify on the basis of transgender status. (Boys can’t use the girls’ restroom, whether or not they identify as female.) He also gives short shrift to the privacy interests of other students, including the two foster daughters of one school parent who stated in an affidavit that her daughters had suffered horrific sexual abuse and that the “very presence of a male, regardless of whether he identifies as a female, in my daughters’ restroom or locker room … will almost certainly cause severe trauma.”