No.

In the Supreme Court of the United States
_____________

GLOUCESTER COUNTY SCHOOL BOARD, PETITIONER
v.
G.G., BY HIS NEXT FRIEND AND MOTHER,
DEIRDRE GRIMM
_____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

_____________

PETITION FOR A WRIT OF CERTIORARI
_____________
JONATHAN F. MITCHELL
D. JOHN SAUER
JAMES OTIS LAW GROUP, LLC
12977 North Forty Drive
Suite 214
St. Louis, MO 63141
(314) 682-6067
DAVID P. CORRIGAN
JEREMY D. CAPPS
M. SCOTT FISHER JR.
HARMAN, CLAYTOR,
CORRIGAN & WELLMAN
Post Office Box 70280
Richmond, VA 23255
(804) 747-5200

S. KYLE DUNCAN
Counsel of Record
GENE C. SCHAERR
SCHAERR DUNCAN LLP
1717 K Street NW, Suite 900
Washington, DC 20006
(202) 714-9492
KDuncan@SchaerrDuncan.com

Counsel for Petitioner

 QUESTIONS PRESENTED
Title IX prohibits discrimination “on the basis of
sex,” 20 U.S.C. § 1681(a), while its implementing regulation permits “separate toilet, locker rooms, and shower
facilities on the basis of sex,” if the facilities are “comparable” for students of both sexes, 34 C.F.R. § 106.33. In
this case, a Department of Education official opined in an
unpublished letter that Title IX’s prohibition of “sex”
discrimination “include[s] gender identity,” and that a
funding recipient providing sex-separated facilities under the regulation “must generally treat transgender
students consistent with their gender identity.” App.
128a, 100a. The Fourth Circuit afforded this letter “controlling” deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997). On remand the district court
entered a preliminary injunction requiring the petitioner
school board to allow respondent — who was born a girl
but identifies as a boy — to use the boys’ restrooms at
school.
The questions presented are:
1. Should this Court retain the Auer doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled?
2. If Auer is retained, should deference extend to an
unpublished agency letter that, among other things, does
not carry the force of law and was adopted in the context
of the very dispute in which deference is sought?
3. With or without deference to the agency, should
the Department’s specific interpretation of Title IX and
34 C.F.R. § 106.33 be given effect?

 ii
PARTIES TO THE PROCEEDING
Petitioner Gloucester County School Board was Defendant-Appellee in the court of appeals in No. 15-2056,
and Defendant-Appellant in the court of appeals in No.
16-1733.
Respondent G.G., by his next friend and mother,
Deirdre Grimm, was Plaintiff-Appellant in the court of
appeals in No. 15-2056 and Plaintiff-Appellee in the court
of appeals in No. 16-1733.

 iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................. i 
PARTIES TO THE PROCEEDING................................ ii 
TABLE OF AUTHORITIES............................................ vi 
INTRODUCTION ............................................................... 1 
OPINIONS BELOW ........................................................... 3 
JURISDICTION ................................................................. 4 
STATUTORY PROVISIONS INVOLVED ..................... 4 
STATEMENT ...................................................................... 5 
A.  Facts ...........................................................................5 
B.  District Court Proceedings ..................................... 9 
C.  Appeal To The Fourth Circuit
In No. 15-2056 ..........................................................11 
D.  The “Dear Colleague” Letter
Of May 13, 2016 .......................................................14 
E.  The Proceedings After Remand,
Including No. 16-1733 ............................................ 16 
REASONS FOR GRANTING THE PETITION ......... 18 
I.  The Court Should Grant Certiorari To
Reconsider The Doctrine Of Auer
Deference ................................................................ 18 

 iv
II.  The Court Should Grant Certiorari To
Resolve Disagreements Among The Lower
Courts Over When The Auer-Deference
Framework, If It Survives, Should Be
Applied. .................................................................... 25 
A.  The Fourth Circuit’s Decision To Extend
Auer Deference To The Ferg-Cadima
Letter Conflicts With Rulings From The
First, Seventh, And Eleventh Circuits .......... 26 
B.  The Fourth Circuit’s Decision To Extend
Auer Deference To The Ferg-Cadima
Letter Is In Substantial Tension With
Decisions In The Ninth And Federal
Circuits .............................................................. 30 
C.  The Nationwide Federal Injunction
Decision From Texas Also Conflicts
With The Fourth Circuit’s Approach ............ 31 
III. The Court Should Grant Certiorari To
Consider Whether The Department’s
Interpretation Of Title IX And 34 C.F.R.
§ 106.33 Is Binding ................................................. 33
CONCLUSION ...................................................................38

 v
APPENDIX
Court of appeals opinion (Apr. 19, 2016) .........................1a
Court of appeals order denying rehearing en banc
(May 31, 2016) .............................................................61a
Court of appeals order denying stay of mandate
(June 9, 2016) ..............................................................67a
District court order entering preliminary injunction
(June 23, 2016) ............................................................71a
District court order denying stay pending appeal
(July 6, 2016) ...............................................................73a
Court of appeals order denying stay pending appeal
(July 12, 2016) .............................................................76a
District court order denying G.G.’s motion for preliminary injunction (Sept. 4, 2014) ...................................82a
District court opinion denying G.G.’s motion for preliminary injunction (Sept. 17, 2014) .................................84a
E-mail from Emily T. Prince to Massie Ritsch,
Dep’t of Education (Dec. 14, 2014) .........................118a
Letter from James A. Ferg-Cadima,
(Jan. 5, 2015) .............................................................121a
“Dear Colleague” Letter from Catherine E.
Lhamon and Vanita Gupta (May 13, 2016) ............126a
Declaration of Troy M. Andersen
(July 7, 2015) .............................................................143a
Corrected Declaration of G.G. (June 3, 2015) .............146a
Minutes of School Board Meeting (June 9, 2016) .......153a
United States’ Statement of Interest
(June 29, 2015) ..........................................................160a
Preliminary-Injunction Order in Texas v. United
States, No. 7:16-cv-00054-O (Aug. 21, 2016) ...........183a

 vi
TABLE OF AUTHORITIES
Cases 
Arlington Cent. Sch. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) ......................................................... 36
Arriaga v. Fla. Pac. Farms, L.L.C.,
305 F.3d 1228 (11th Cir. 2002) ...................................... 28
Auer v. Robbins,
519 U.S. 452 (1997) ................................................. passim
Barnhart v. Walton,
535 U.S. 212 (2002) ......................................................... 24
Bassiri v. Xerox Corp.,
463 F.3d 927 (9th Cir. 2006) .......................................... 29
Bennett v. Ky. Dep’t of Educ.,
470 U.S. 656 (1985) ......................................................... 37
Bible ex rel. Proposed Class v. United Student Aid
Funds, Inc.,
799 F.3d 633 (7th Cir. 2015) .......................................... 30
Biodiversity Conservation All. v. Jiron,
762 F.3d 1036 (10th Cir. 2014) ...................................... 30
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945) ................................. 18, 20, 22, 23, 29
Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
Inc.,
467 U.S. 837 (1984) ................................................. passim
Christensen v. Harris Cnty.,
529 U.S. 576 (2000) ................................................. passim

 vii
Cordiano v. Metacon Gun Club, Inc.,
575 F.3d 199 (2nd Cir. 2009) ......................................... 29
Decker v. Nw. Envtl. Def. Ctr.,
133 S. Ct. 1326 (2013) ............................................... 19, 20
Encarnacion ex. rel George v. Astrue,
568 F.3d 72 (2nd Cir. 2009) ........................................... 29
Etsitty v. Utah Transit Auth.,
502 F.3d 1215 (10th Cir. 2007) ...................................... 34
Foster v. Vilsack,
820 F.3d 330 (8th Cir. 2016) .......................................... 19
Gloucester Cnty. Sch. Bd. v. G.G.,
136 S. Ct. 2442 (2016) (per curiam) .............................. 17
Gonzales v. Oregon,
546 U.S. 243 (2006) ......................................................... 31
Hively v. Ivy Tech Cmty. Coll.,
__ F.3d __, 2016 U.S. App. LEXIS 13746
(7th Cir. July 28, 2016) ................................................... 34
Intracomm, Inc. v. Bajaj,
492 F.3d 285 (4th Cir. 2007) .......................................... 30
Johnston v. Univ. of Pittsburgh,
97 F.Supp.3d 657 (W.D. Pa. 2015) .......................... 34, 36
Keys v. Barnhart,
347 F.3d 990 (7th Cir. 2003) .................................... 27, 28
Mass. Mut. Life Ins. Co. v. United States,
782 F.3d 1354 (Fed. Cir. 2015) ...................................... 31

 viii
NFIB v. Sebelius,
132 S. Ct. 2566 (2012) ..................................................... 36
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ............................................................. 36
Perez v. Mortg. Bankers Ass’n,
135 S. Ct. 1199 (2015) ............................................... 19, 20
Polycarpe v. E&S Landscaping Serv. Inc.,
616 F.3d 1217 (11th Cir. 2010) ...................................... 30
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ................................................... 35, 36
Rust v. Sullivan,
500 U.S. 173 (1991) ......................................................... 36
Smith v. Nicholson,
451 F.3d 1344 (Fed. Cir. 2006) ...................................... 29
Nebraska v. United States of America,
No. 4:16-cv-03117 (D. Neb. July 8, 2016) ..................... 16
Texas v. United States of America,
No. 7:16-cv-00054 (N.D. Tex. May 25, 2016) ... 15–16, 32
Thorpe v. Hous. Auth. of City of Durham,
393 U.S. 268 (1969) ......................................................... 23
Udall v. Tallman,
380 U.S. 1 (1965) ............................................................. 23
Ulane v. E. Airlines, Inc.,
742 F.2d 1081 (7th Cir. 1984) ........................................ 35
United States v. Lachman,
387 F.3d 42 (1st Cir. 2004) ............................................. 26

 ix
United States v. Mead Corp.,
533 U.S. 218 (2001). .......................... 23, 24, 25, 26, 27, 29
United States v. Virginia,
518 U.S. 515 (1996) ..................................................... 1, 35
Universal Camera Corp. v. NLRB,
340 U.S. 474 (1951) ......................................................... 22
Vietnam Veterans of Am. v. CIA,
811 F.3d 1068 (9th Cir. 2015) ........................................ 31
Woudenberg v. U.S. Dep’t of Agric.,
794 F.3d 595 (6th Cir. 2015) .......................................... 30
Statutes 
5 U.S.C. § 706 ................................................................ 21, 22
20 U.S.C. § 1681 .......................................................... passim
20 U.S.C. § 1686 .................................................................. 35
28 U.S.C. § 1254(1) ............................................................... 4
28 U.S.C. § 2101(c)................................................................ 4
42 U.S.C. § 13925 ................................................................ 33
42 U.S.C. § 3796gg.............................................................. 33
Legislative Materials 
H.R. 1397 (112th Cong. 2011)............................................ 33
H.R. 1755 (113th Cong. 2013)............................................ 33
H.R. 2015 (110th Cong. 2007)............................................ 33
H.R. 3017 (111th Cong. 2009)............................................ 33
S. 1584 (111th Cong. 2009) ................................................ 33

 x
S. 811 (112th Cong. 2011) .................................................. 33
S. 815 (113th Cong. 2013) .................................................. 33
Administrative Materials 
34 C.F.R. § 106.32 ............................................................... 35
34 C.F.R. § 106.33 ....................................................... passim
34 C.F.R. § 106.34 ............................................................... 35
Other Authorities 
Anthony, Robert A.,
The Supreme Court and the APA: Sometimes
They Just Don’t Get It,
10 Admin. L.J. Am. U. 1 (1996)..................................... 19
Breyer, Stephen,
Judicial Review of Questions of Law and Policy,
38 Admin. L. Rev. 363 (1986) ........................................ 23
Manning, John F.,
Constitutional Structure and Judicial Deference
to Agency Interpretations of Agency Rules,
96 Colum. L. Rev. 612 (1996) .................................. 19, 20
Sunstein, Cass R.,
Chevron Step Zero,
92 Va. L. Rev. 187 (2006) ............................................... 23
United States Department of Education, Questions
and Answers on Title IX and Single-Sex
Elementary and Secondary Classes and
Extracurricular Activities (Dec. 1, 2014) .................... 9

 INTRODUCTION
As petitioner Gloucester County School Board (the
Board) pointed out in the stay application that the Court
granted on August 3, 2016, this case presents an extreme
example of judicial deference to an administrative agency’s purported interpretation of its own regulation. For
that and several other reasons, this case provides the
perfect vehicle for revisiting the deference doctrine articulated in Auer v. Robbins, 519 U.S. 452 (1997), and
subsequently criticized by several Justices of this Court.
The statute at the heart of the administrative interpretation here is Title IX of the Education Amendments
of 1972. Enacted over forty years ago, Title IX and its
implementing regulation have always allowed schools to
provide “separate toilet, locker rooms, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. No one ever
thought this was discriminatory or illegal. And for decades our Nation’s schools have structured their facilities
and programs around the idea that in certain intimate
settings men and women may be separated “to afford
members of each sex privacy from the other sex.” United
States v. Virginia, 518 U.S. 515, 550 n.19 (1996).
The Fourth Circuit’s decision turns that longstanding
expectation upside down. Deferring to the views of a relatively low-level official in the Department of Education
(Department), the court reasoned that for purposes of
Title IX the term “sex” does not simply mean physiological males and females, which is what Congress and the
Department (and everyone else) thought the term meant
when the regulation was promulgated. Instead, the Department and the Fourth Circuit now tell us that “sex” is
ambiguous as applied to persons whose subjective gen-

 2
der identity diverges from their physiological sex. App.
17a–20a. According to the Fourth Circuit, this means a
physiologically female student who self-identifies as a
male — as does the plaintiff here — must be allowed under Title IX to use the boys’ restroom.
The Fourth Circuit reached this conclusion, not by interpreting the text of Title IX or its implementing regulation (neither of which refers to gender identity), but by
deferring to an agency opinion letter written just last
year by James Ferg-Cadima, the Acting Deputy Assistant Secretary for Policy for the Department of Education’s Office of Civil Rights. App. 121a. The letter is unpublished; its advice has never been subject to notice and
comment; and it was generated in direct response to an
inquiry about the Board’s restroom policy in this very
case. Nonetheless, the Fourth Circuit concluded — over
Judge Niemeyer’s dissent — that the letter was due
“controlling” deference under Auer. App. 25a. On that
basis, the district court immediately entered a preliminary injunction allowing the plaintiff to use the boys’
restroom.
Shortly after the Fourth Circuit’s decision, the Department (along with the Department of Justice) issued
a “Dear Colleague” letter seeking to impose that same
requirement on every Title IX-covered educational institution in the Nation. But just last week, the Departments’ effort was halted by a nationwide injunction issued by a federal district judge in Texas.
These recent developments highlight the urgent need
for this Court to grant this petition and resolve the is-

 3
sues presented by the Fourth Circuit’s decision. As explained in more detail below, the Court should grant the
petition for three reasons. First, this case provides an
excellent vehicle for reconsidering — and abolishing or
refining — the Auer doctrine. Second, if the Court decides to retain Auer in some form, this case provides an
excellent vehicle for resolving important disagreements
among the lower courts about Auer’s proper application.
Third, this case provides an excellent vehicle for determining whether the Department’s understanding of Title
IX reflected in the Ferg-Cadima and “Dear Colleague”
letters must be given effect — thereby resolving once
and for all the current nationwide controversy generated
by these directives.
OPINIONS BELOW
This petition seeks review of two related cases in the
court of appeals, Nos. 15-2056 and 16-1733. No. 15-2056
is G.G’s appeal of the district court’s order denying his
request for a preliminary injunction. The opinion of the
court of appeals in that case is available at 822 F.3d 709
(4th Cir. 2016). App. 1a–60a. The district court’s opinion
in that case is available at 132 F.Supp.3d 736 (E.D. Va.
2015). App. 84a–117a.
No. 16-1733 is the Board’s appeal of the district
court’s order granting a preliminary injunction after the
remand in No. 15-2056. The district court’s opinion in
that case is available at 2016 U.S. Dist. LEXIS 93164.
App. 71a–72a.

 4
JURISDICTION
In No. 15-2056, the court of appeals entered its
judgment on April 19, 2016. App. 3a. It denied the
Board’s petition for rehearing en banc on May 31, 2016.
App. 61a. No. 16-1733 remains pending in the court of
appeals. The Board timely filed this petition for a writ of
certiorari on August 29, 2016. See 28 U.S.C. § 2101(c).
This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Title IX of the Education Amendments of 1972 provides, in relevant part:
No person in the United States shall, on the
basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to
discrimination under any education program or
activity receiving Federal financial assistance
...
20 U.S.C. § 1681(a).
34 C.F.R. § 106.33 provides:
A recipient 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.

 5
STATEMENT
A.

Facts

G.G. is a 17-year-old student at Gloucester High
School. G.G. is biologically female, meaning that G.G.
was born a girl and recorded as a girl on the birth certificate. “However, at a very young age, G.G. did not feel
like a girl,” and around age twelve began identifying as a
boy. App. 85a. In July 2014, between G.G.’s freshman and
sophomore years, G.G. changed his first name to a boy’s
name and began referring to himself with male pronouns.1 He has also started hormone therapy, but has not
had a sex-change operation.
In August 2014, before the start of G.G.’s sophomore
year, G.G. and his mother met with the principal and
guidance counselor to discuss G.G.’s situation. The school
officials were supportive of G.G. and promised a welcoming environment. School records were changed to reflect
G.G.’s new name, and the guidance counselor helped G.G.
e-mail his teachers asking them to address G.G. using his
male name and male pronouns. App. 87a–88a. As G.G.
admits, teachers and staff have honored these requests.
Id. at 148a.
Neither G.G. nor school officials, however, thought
that G.G. should start using the boys’ restrooms, locker
1

This petition uses “he,” “him,” and “his” to respect G.G.’s desire to be referred to with male pronouns. That choice does not concede anything on the legal question of what G.G.’s “sex” is for purposes of Title IX and its implementing regulation.

 6
rooms, or shower facilities. Instead, G.G. and his mother
suggested G.G. use a separate restroom in the nurse’s
office rather than the boys’ room, and the school agreed.
App. 149a. G.G. claims he accepted this arrangement because he was “unsure how other students would react to
[his] transition.” Id. But four weeks into the school year
G.G. changed his mind and sought permission to use the
boys’ restroom. The principal granted G.G.’s request on
October 20, 2014. G.G. says he asked for access to the
boys’ restroom because he found it “stigmatizing” to use
the restroom in the nurse’s office. Id.
Immediately after G.G. started using the boys’ restrooms, the Board began receiving complaints from parents and students who regarded G.G.’s presence in the
boys’ room as an invasion of student privacy. App. 144a.
Parents also expressed general concerns that allowing
students into restrooms and locker rooms of the opposite
biological sex could enable voyeurism or sexual assault.
The Board held public meetings on November 11 and
December 9, 2014, to consider the issue, and citizens on
both sides expressed their views in thoughtful and respectful terms.2 At the December 9 meeting, the Board
2

The Fourth Circuit’s opinion tries to depict the citizens who
opposed G.G’s presence in the boys’ room as largely “hostil[e]” to
G.G., selectively quoting the few intemperate statements and subtly
implying they represented the whole. App. 10a. The video of the
meetings, however, shows that the overwhelming majority of those
expressing concern did so with courtesy and decency, not “hostility.”
See
http://bit.ly/2bsVO6h
(Dec.
9,
2014
meeting);
http://www.gloucesterva.info/channels47and48 (containing link to
Nov. 11, 2014 meeting video).

 7
adopted a resolution recognizing “that some students
question their gender identities,” and encouraging “such
students to seek support, advice, and guidance from parents, professionals and other trusted adults.” The resolution then concluded:
Whereas the [Board] seeks to provide a safe
learning environment for all students and to
protect the privacy of all students, therefore
It shall be the practice of the [Board] to provide male and female restroom and locker
room facilities in its schools, and the use of said
facilities shall be limited to the corresponding
biological genders, and students with gender
identity issues shall be provided an alternative
appropriate private facility.
Id. at 144a.
Before the Board adopted this resolution, the high
school announced it would install three single-stall unisex bathrooms throughout the building — regardless of
whether the Board approved the December 9 resolution.
These unisex restrooms would be open to all students
who, for whatever reason, desire greater privacy. They
opened for use shortly after the Board adopted the resolution. G.G., however, refuses to use these unisex bathrooms because, he says, they “make me feel even more
stigmatized and isolated than when I use the restroom in
the nurse’s office.” App. 151a.

 8
A few days after the Board’s decision, a lawyer
named Emily T. Prince3 sent an e-mail about the Board’s
resolution to the Department, asking whether it had any
“guidance or rules” relevant to the Board’s decision.
App. 118a–120a. In response, on January 7, 2015, James
A. Ferg-Cadima, an Acting Deputy Assistant Secretary
for Policy in the Department’s Office of Civil Rights sent
a letter stating that “Title IX . . . prohibits recipients of
Federal financial assistance from discriminating on the
basis of sex, including gender identity,” and further
opining that:
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.
App. 121a, 123a (emphasis added).
The Ferg-Cadima letter cites no document requiring
schools to treat transgender students “consistent with
their gender identity” regarding restroom, locker room,
or shower access. It instead cites a Q&A sheet on the
3

Ms. Prince describes herself as the “Sworn Knight of the
Transsexual Empire.” See https://twitter.com/emily_esque?lang=
en. Her name appears in the signature of the e-mail that DOJ filed
in the district court, when the file is opened in Preview for Mac.

 9
Department website, which says only that schools must
treat transgender students consistent with their gender
identity when holding single-sex classes. See United
States Department of Education, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1,
2014), http://bit.ly/1HRS6yI (emphasis added) (last visited Aug. 29, 2016) (Q&A #31) (opining “[h]ow . . . the
Title IX requirements on single-sex classes apply to
transgender students) (emphasis added).
B.

District Court Proceedings

G.G. filed suit against the Board on June 11, 2015 —
two days after the end of the 2014–15 school year. His
complaint alleged that the Board’s resolution violated
Title IX and the Equal Protection Clause, and sought
declaratory and injunctive relief, damages, and attorneys
fees.
On June 29, 2015, the Department of Justice (“DOJ”)
filed a “statement of interest” accusing the Board of violating Title IX. See App. 160a–183a. The statement did
not even cite 34 C.F.R. § 106.33, let alone explain how the
Board’s policy could be unlawful under the regulation’s
text. Instead, DOJ trumpeted the Ferg-Cadima letter as
the “controlling” interpretation of Title IX and the regulation, even though DOJ acknowledged that the letter
had never been “publicly issued.” See id. at 171.4 DOJ
4

DOJ cited two other documents issued by the Department of
Education, but neither addresses whether schools must allow
transgender students into restrooms or locker rooms that corre(continued…)

 10
also asserted that “an individual’s gender identity is one
aspect of an individual’s sex,” id. at 169a, but failed to
cite any statute or regulation adopting or supporting
that view.
Without ruling on G.G.’s equal-protection claim, the
district court dismissed G.G.’s Title IX claim and denied
a preliminary injunction. See App. 82a–83a (order); 84a–
117a (opinion). It held that G.G.’s Title IX claim was
foreclosed by 34 C.F.R. § 106.33, the regulation allowing
comparable separate restrooms and other facilities “on
the basis of sex.” App. 97a–98a.
The district court assumed, for the sake of argument,
that the phrase “on the basis of sex” includes distinctions
based on both gender identity as well as biological sex.
App. 99a, 102a. Yet even under this broad reading of
“sex,” it would remain permissible under section 106.33
to separate restrooms by biological sex or gender identity. Consequently, as the district court pointed out, section
106.33 would forbid the Board’s policy only if “sex” refers solely to distinctions based on gender identity, and
excludes those based on biological sex. Id. at 99a. The
district court held that this would be an absurd construction, however. Indeed, if applied to the Title IX statute, it
would permit discrimination against men or women, so
long as the recipient discriminates on account of gender
identity rather than biological sex. Id. at 102a.

spond with their gender identity. See ECF No. 28 at 9; see also, supra, at 7–8.

 11
Consequently, the district court refused to give controlling weight to the interpretation of Title IX and 34
C.F.R. § 106.33 in the Ferg-Cadima letter. First, the district court observed that letters of this sort lack the force
of law under Christensen v. Harris County, 529 U.S. 576,
587 (2000), and cannot receive Chevron deference when
interpreting Title IX. App. 101a. The Court also held
that the letter should not receive deference under Auer
v. Robbins, 519 U.S. 452 (1997), because it contradicts the
unambiguous language of 34 C.F.R. § 106.33, which allows schools to establish separate restrooms “on the basis of sex” — even if one assumes that “on the basis of
sex” refers to both gender identity and biological sex.
Thus, the district court regarded the Ferg-Cadima letter
as an attempted amendment to, rather than an interpretation of, 34 C.F.R. § 106.33, and held that to be binding
any such amendment must go through notice-andcomment rulemaking. App. 102a–103a.
C.

Appeal to the Fourth Circuit in No. 152056

Over Judge Niemeyer’s dissent, the Fourth Circuit
reversed the district court’s dismissal of G.G.’s Title IX
claim, and held that the district court should have enforced the Ferg-Cadima letter as the authoritative construction of Title IX and 34 C.F.R. § 106.33 under Auer.
App. 13a–25a.
First, the panel held that section 106.33 was “ambiguous” as applied to “whether a transgender individual is
a male or a female for the purpose of access to sexsegregated restrooms,” and that the Ferg-Cadima letter

 12
“resolve[d]” this ambiguity by determining sex solely by
reference to “gender identity.” Id. at 19a, 18a.
Second, the panel held that the letter’s interpretation — “although perhaps not the intuitive one,” id. at
23a — was not, in the words of Auer, “plainly erroneous
or inconsistent with the regulation or the statute.” Id. at
20a. In the panel’s view, the term “sex” does not necessarily suggest “a hard-and-fast binary division [of males
and females] on the basis of reproductive organs.” Id. at
22a.
Third, the panel found that the letter’s interpretation
was a result of the agency’s “fair and considered judgment,” because the agency had consistently enforced this
position “since 2014” — that is, for the previous several
months — and it was “in line with” other federal agency
guidance. Id. at 24a. While conceding that the FergCadima interpretation was “novel,” given that “there
was no interpretation of how section 106.33 applied to
transgender individuals before January 2015,” the panel
nonetheless thought this novelty was no reason to deny
Auer deference. Id. at 23a.
The panel, however, did not address the district
court’s reason for rejecting the agency interpretation —
namely, that it would make the phrase “on the basis of
sex” exclude biological sex and refer only to gender
identity, a construction that would absurdly mean that
Title IX no longer protects men or women from discrimination on the basis of biological sex. App. 99a, 102a. Nor
did the panel acknowledge that the agency was expressly
interpreting the Title IX statute, not merely the regula-

 13
tion. See App. 121a (stating that “Title IX . . . prohibits
[funding] recipients . . . from discriminating on the basis
of sex, including gender identity . . . .”) (emphases added). The panel thus did not address the district court’s
conclusion that giving the letter controlling deference
would permit agencies to “avoid the process of formal
rulemaking by announcing regulations through simple
question and answer publications.” App. 103a
Judge Niemeyer dissented from the panel’s decision
to give controlling effect to the Ferg-Cadima letter, for
many of the reasons given by the district court. App.
40a–60a. Judge Niemeyer explained that the premise for
applying Auer was absent, because “Title IX and its implementing regulations are not ambiguous” in allowing
separate restrooms and other facilities on the basis of
“sex.” Id. at 43a. To the contrary, those provisions “employ[ ] the term ‘sex’ as was generally understood at the
time of enactment,” as referring to “the physiological
distinctions between males and females, particularly
with respect to their reproductive functions.” Id. at 53a–
55a. He also explained that the DOJ’s conflation of “sex”
in Title IX with “gender identity” would produce “unworkable and illogical result[s],” undermining the privacy and safety concerns that motivated the allowance of
sex-separated facilities in the first place. Id. at 42a–43a.
Judge Niemeyer also noted that the Fourth Circuit’s
endorsement of the Ferg-Cadima letter will require
schools to allow students with gender-identity issues not
only into the restrooms but also into the locker rooms
and showers reserved for the opposite biological sex. In
Judge Niemeyer’s view, this would violate other stu-

 14
dents’ “legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons
of the opposite biological sex.” Id. at 50a.
The Board moved for rehearing en banc, which the
panel denied on May 31, 2016. Id. at 61a–66a. Judge
Niemeyer dissented but declined to call for an en banc
poll, stating that “the momentous nature of the issue deserves an open road to the Supreme Court.” Id. at 65a.
The Board then asked for a stay of the Fourth Circuit’s
mandate pending the filing of a certiorari petition. This,
too, was denied, again over Judge Niemeyer’s dissent.
Id. at 67a–70a. The mandate in No. 15-2056 issued on
June 17, 2016.
D.

The “Dear Colleague” Letter Of May 13,
2016

After the Fourth Circuit’s ruling, two federal officials,
the Department’s Catherine E. Lhamon and DOJ’s Vanita Gupta, quickly issued a “Dear Colleague” letter to
every Title IX recipient in the country. Id. at 126a–142a.
This document expands on the Ferg-Cadima letter by
imposing detailed requirements on how schools must accommodate students with gender-identity issues, including the following edicts:
•

Every student claiming to be transgender
must be allowed to access restrooms, locker
rooms, shower facilities, and athletic teams
consistent with his or her gender identity. The
Ferg-Cadima letter had hedged this requirement by including the word “generally.” App.

 15
123a. The “Dear Colleague” letter removes
the hedge and allows for no exceptions. Id. at
134a.
•

A school must allow a student access to the
restrooms, locker rooms, and showers of the
opposite biological sex after the “student or
the student’s parent or guardian, as appropriate” merely notifies the school that the student will assert a gender identity different
from his or her biological sex. App. 130a (emphasis added). No medical or psychological diagnosis or evidence of professional treatment
need be provided. Id.

•

Non-transgender students who are unwilling
to use restrooms, locker rooms, or showers at
the same time as a classmate of the opposite
biological sex may be relegated to a separate,
individual-user facility. App. 134a. But a school
cannot require the transgender student to use
that separate, individual-user facility, no matter how many non-transgender students object to the presence of a student of the opposite biological sex in restrooms, locker rooms,
or showers. Id.

The letter went out on May 13, 2016, only 24 days after the Fourth Circuit’s decision. Needless to say, it did
not go through notice-and-comment rulemaking.
The Dear Colleague letter has been challenged by
over twenty States in two federal lawsuits. See Texas v.
United States of America, No. 7:16-cv-00054 (N.D. Tex.

 16
May 25, 2016); Nebraska v. United States of America,
No. 4:16-cv-03117 (D. Neb. July 8, 2016). On August 21,
2016, a federal district court in Texas issued a nationwide
preliminary injunction against enforcement of the regulatory interpretation contained in the Dear Colleague
letter and in similar guidance documents. See Texas, supra, ECF No. 58; Pet. App. 183a–229a.
E.

The
Proceedings
Including No. 16-1733

After

Remand,

Meanwhile, on remand from the Fourth Circuit, the
district court promptly entered a preliminary injunction
without giving the Board any notice or opportunity to
submit additional briefing or evidence. App. 71–72a. The
injunction orders the Board to permit G.G. to use the
boys’ restroom at Gloucester High School “until further
order of this Court.” Id. at 72a. It does not enjoin the
Board from enforcing its policy with respect to locker
rooms and showers — even though the Ferg-Cadima letter, which the Fourth Circuit endorsed as “controlling”
authority, generally requires schools to allow
transgender students to access locker rooms, shower facilities, housing, and athletic teams that accord with their
gender identity. App. 123a.
The Board appealed this preliminary-injunction order, which created a second case in the Fourth Circuit,
No. 16-1733. The district court denied the Board’s request to stay its injunction pending appeal. App. 73a–
75a. The Board’s request that the Fourth Circuit stay the
injunction pending appeal was also denied, again over
Judge Niemeyer’s dissent. App. 76a–81a.

 17
Finally, the Board asked this Court to recall and stay
the Fourth Circuit’s mandate in No. 15-2056, and to stay
the district court’s preliminary injunction, pending this
certiorari petition. This Court granted the Board’s request on August 3, 2016. Gloucester Cnty. Sch. Bd. v.
G.G., 136 S. Ct. 2442 (2016) (per curiam). In this combined petition, the Board seeks a writ of certiorari as to
No. 15-2056, and a writ of certiorari before judgment at
to No. 16-1733. See S. Ct. R. 12.4.

 18
REASONS FOR GRANTING THE PETITION
The Court should grant the petition for three reasons. First, this case provides an excellent vehicle for reconsidering — and abolishing or refining — the doctrine
of Auer deference that has recently been questioned by
several Justices. Second, if the Court decides to retain
Auer, this case provides an excellent vehicle for resolving important disagreements among the lower courts
about Auer’s proper application. Third, this case provides an excellent vehicle for determining whether the
Department’s understanding of Title IX and section
106.33 — an understanding it has recently sought to impose upon educational institutions throughout the Nation — is controlling.
I.

THE
COURT
SHOULD
GRANT
CERTIORARI TO RECONSIDER THE
DOCTRINE OF AUER DEFERENCE.

As to the first reason: The Fourth Circuit did not
even attempt to show that the Ferg-Cadima letter reflects the most plausible construction of 34 C.F.R.
§ 106.33. Instead, its ruling hinged entirely on Auer deference — a doctrine that requires courts to enforce an
agency’s interpretation of its own regulations unless that
interpretation is “plainly erroneous or inconsistent with
the regulation.” Auer, 519 U.S. at 461 (citation omitted);
see also Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945). Several members of this Court have expressed interest in revisiting the doctrine of Auer defer-

 19
ence, which gives agencies enormous power over policy
issues of interest across the political spectrum.5 This
case presents an ideal vehicle for doing so, because the
issue is fully preserved and because the Fourth Circuit
discussed the Auer framework extensively and regarded
it as outcome-determinative. App. 15a–24a.6
The problems with Auer deference have been well
rehearsed. See, e.g., Decker, 133 S. Ct. at 1339–42 (Scalia,
J., concurring in part and dissenting in part); Perez, 135
S. Ct. at 1213–25 (Thomas, J., concurring in the judgment); John F. Manning, Constitutional Structure and
Judicial Deference to Agency Interpretations of Agency
Rules, 96 Colum. L. Rev. 612 (1996); Robert A. Anthony,
The Supreme Court and the APA: Sometimes They Just
Don’t Get It, 10 Admin. L.J. Am. U. 1, 4–12 (1996). Four
of the most important reasons for this Court to abandon
or limit the scope of the Auer-deference regime are as
follows:
5

See, e.g., Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1338–
39 (2013) (Roberts, C.J., concurring); id. at 1339–42 (Scalia, J., concurring in part and dissenting in part); Perez v. Mortg. Bankers
Ass’n, 135 S. Ct. 1199, 1210–11 (2015) (Alito, J., concurring in part
and concurring in the judgment); id. at 1211–13 (Scalia, J., concurring in the judgment); id. at 1213–25 (Thomas, J., concurring in the
judgment).
6

By contrast, in Foster v. Vilsack, 820 F.3d 330 (8th Cir. 2016)
(petition for certiorari pending), the Eighth Circuit’s opinion does
not cite or discuss Auer or any Auer-related rulings from this Court.
It simply declares, without analysis, that the agency’s “reasonable
interpretation” is “owe[d] deference.” Id. at 335.

 20
First, as this case illustrates, Auer deference effectively gives an agency the power to invade the province
of both Congress and the courts in determining federal
law on all kinds of issues of interest to all kinds of constituencies. See, e.g., Decker, 133 S. Ct. at 1342 (Scalia,
J., dissenting) (Auer “contravenes one of the great rules
of separation of powers [that he] who writes a law must
not adjudge its violation.”); Perez, 135 S. Ct. at 1217
(Thomas, J., concurring in the judgment) (Auer is an unconstitutional “transfer of judicial power to the Executive branch,” and “an erosion of the judicial obligation to
serve as a ‘check’ on the political branches.”); id. at
1210–11 (Alito, J., concurring in part and concurring in
the judgment) (noting that “the opinions of Justice Scalia
and Justice Thomas offer substantial reasons why the
Seminole Rock doctrine may be incorrect”).
Here, in purporting to interpret section 106.33, the
Department effectively changed the meaning of the statutory term “sex” in Title IX. To be sure, it did so in a
manner that furthered the views of the present Administration. But that same strategy could easily be adopted
by a future administration with radically different views.
Indeed, it could be deployed to effectively amend in a different direction, and without any meaningful judicial review, not only Title IX, but also other federal statutes
dealing with matters such as health care, the environment, labor relations, and financial-services regulation.
For those reasons, the type of Auer deference applied by
the Fourth Circuit here raises serious separation-ofpowers problems. See, e.g., Manning, supra, at 631–54.

 21
Second, the Auer doctrine is poorly formulated. It instructs courts to enforce an agency’s interpretation of its
own regulations unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer, 519
U.S. at 461 (emphasis added). But that disjunctive formulation leaves substantial ambiguity: The phrase “inconsistent with the regulation” implies de novo rather
than deferential review. And it is not apparent how the
“plainly erroneous” prong of the Auer deference test will
ever do any work: Every “plainly erroneous” interpretation of a regulation will also be “inconsistent with the
regulation,” and the disjunctive “or” means that a litigant challenging the interpretation need only show that
the agency’s interpretation fails under the less deferential half of this test. This petition presents a prime opportunity for the Court to resolve this ambiguity — even
if a majority of the Court wishes to retain some form of
Auer deference.
The third problem for the Auer doctrine is the text of
the Administrative Procedure Act, which plainly states
that:
[T]he reviewing court shall decide all relevant
questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms of an agency
action.
5 U.S.C. § 706 (emphases added). How can this statutory
command be reconciled with a regime that requires the
judiciary to defer to an agency’s interpretation of its
regulations, rather than “determine the meaning” of

 22
those agency rules for itself? No one thinks the APA’s
command to “interpret constitutional . . . provisions” requires courts to defer to an agency’s beliefs on what the
Constitution means. So why do matters suddenly become
different when an agency purports to “determine the
meaning” of one of its rules?
To be sure, some APA provisions require courts to
defer to some forms of agency decisionmaking, but those
provisions do so in unmistakable language. See, e.g., 5
U.S.C. § 706(2)(E) (authorizing courts to set aside agency factfinding only when “unsupported by substantial
evidence”); Universal Camera Corp. v. NLRB, 340 U.S.
474 (1951) (holding that section 706(2)(E) requires deferential judicial review of agency factfinding). In contrast
to those provisions, the APA’s straightforward instruction that courts “decide all relevant questions of law” and
“determine the meaning . . . of an agency action” leaves
the Auer doctrine in a precarious position. The APA tells
the courts to “determine the meaning” of an agency’s
rules, but Auer tells the agency to “determine the meaning” of its rules so long as it stays within the boundaries
of reasonableness.
The opinion in Seminole Rock said nothing about how
its ostensible deference regime might be reconciled with
the text of the APA, see 325 U.S. 410, but it had good
reason for that omission: the APA had not been enacted
yet. So the Seminole Rock Court can be forgiven for failing to explain how its deference concept can co-exist with
section 706 of the APA. It is harder to justify the postSeminole Rock decisions that reflexively followed this
pre-APA decision without acknowledging the intervening

 23
statute or attempting to explain how Seminole Rock
could survive the APA.7
Nor can Auer be defended on the ground that Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), likewise ignored section 706 of
the APA. This Court eventually supplied a rationale for
Chevron that comports with the APA: Influenced heavily
by Justice Breyer’s scholarship,8 the Court held in United States v. Mead Corp. that Chevron can apply only
when Congress affirmatively intends to delegate interpretive or gap-filling authority to an agency. See 533 U.S.
218, 229–34 (2001). After Mead, a court that applies
Chevron is not “deferring” to an agency’s interpretation
of a statute. Rather, it is interpreting the statute de novo,
and asking whether Congress intended to authorize the
agency to act within certain statutory boundaries. If the
answer is “yes,” the statute means that the agency gets
to decide and that reviewing courts must respect the
agency’s decision. Mead enables Chevron to co-exist with

7

See, e.g., Udall v. Tallman, 380 U.S. 1, 16–17 (1965); Thorpe v.
Hous. Auth. of City of Durham, 393 U.S. 268, 276 (1969).
8

See Stephen Breyer, Judicial Review of Questions of Law and
Policy, 38 Admin. L. Rev. 363 (1986); id. at 373 (criticizing notion
that Chevron should apply to all agency interpretations of law as
“seriously overbroad, counterproductive and sometimes senseless.”); Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187
(2006) (explaining how Justice Breyer’s views influenced this Court’s
rulings in Christensen, Mead and Barnhart v. Walton, 535 U.S. 212
(2002)).

 24
section 706 of the APA. No such rationale has ever been
provided for Auer.
This leads to the fourth problem with Auer deference: It cannot be sustained in its current form after this
Court’s decisions in Christensen, Mead, and Barnhart v.
Walton, 535 U.S. 212 (2002). In pre-Mead days, when the
Chevron framework established a blanket presumption
that agencies rather than courts would fill gaps and resolve ambiguities in statutory language, Auer deference
could be defended as Chevron’s logical corollary. If an
agency’s interpretive rules or informal correspondence
would receive Chevron deference when courts interpret
federal statutes, it was reasonable to accord those documents equal weight when interpreting agency regulations — which, after all, have the same force and effect as
a federal statute.
Auer became much harder to defend after Mead,
which withholds Chevron deference from interpretive
rules and other agency correspondence that never went
through notice-and-comment rulemaking. For example,
how can a document like the Ferg-Cadima letter receive
nothing more than Skidmore deference when interpreting a statute,9 but trigger much higher deference as soon
as it purports to interpret an agency regulation? And if
the Ferg-Cadima letter is entitled to Chevron-like deference when it purports to interpret 34 C.F.R. § 106.33,
why doesn’t that make it into a substantive rule that car9

See Mead, 533 U.S. at 229–34; Christensen, 529 U.S. at 587.

 25
ries the force of law and therefore must go through notice and comment? See 5 U.S.C. § 553.
In short, Mead established symmetry between the
Chevron–Skidmore divide and the distinction between
substantive and interpretive rules. “Interpretive rules”
need not go through notice and comment because they
lack the force of law, but for this reason cannot receive
Chevron deference. To confer Chevron deference upon
such interpretive rules would give them the force of law,
thereby triggering section 553’s notice-and-comment requirements. But Auer deference throws a wrench into
this perfectly crafted arrangement, by allowing such
things as the Ferg-Cadima letter to receive the force of
law even though they never went through notice and
comment. If nothing else, the Court should grant certiorari to align the Auer-deference regime with the postMead Chevron regime. That alone would require reversing the Fourth Circuit’s decision.
II.

THE COURT SHOULD GRANT CERTIORARI
TO RESOLVE DISAGREEMENTS AMONG
THE LOWER COURTS OVER WHEN THE
AUER-DEFERENCE FRAMEWORK, IF IT
SURVIVES, SHOULD BE APPLIED.

Assuming Auer survives, this case also presents an
opportunity for the Court to resolve serious disagreements among the lower courts on the proper application
of Auer deference. As explained below, there currently
exists a serious circuit conflict on the question whether
Auer deference can apply at all to informal agency pronouncements. There is also deep disagreement among

 26
the circuits about whether Auer deference can apply to
agency positions that — like the Ferg-Cadima letter —
are developed in the context of the very dispute in which
deference is sought. And the Texas district court’s recent
decision to enjoin the Department’s efforts to impose its
interpretation on schools throughout the Nation both exacerbates the conflict and illustrates the urgent need for
this Court to resolve the questions presented here.
A.

The Fourth Circuit’s Decision To Extend
Auer Deference To The Ferg-Cadima
Letter Conflicts With Rulings From The
First, Seventh, And Eleventh Circuits.

As noted, the Ferg-Cadima letter did not go through
notice and comment, and it is about as informal an agency document as one can imagine. The letter was not publicized; there is no evidence it was approved by the head
of an agency; and it was signed only by a relatively lowlevel federal functionary, an Acting Deputy Assistant
Secretary for Policy. The Fourth Circuit did not think
any of this mattered; it was enough that the Department
was willing to stand by the letter in the federal amicus
brief. App. 16a–17a. But a letter such as this would not
have received Auer deference in the First, Seventh or
Eleventh Circuits.
For example, the First Circuit’s ruling in United
States v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004), refused to extend Auer deference to non-public or informal
agency interpretations — and it linked Auer deference to
the same formality requirements that trigger Chevron
deference under Mead:

 27
[A]gency interpretations are only relevant if
they are reflected in public documents. . . .
[U]nder Chevron, the Supreme Court has
made clear that informal agency interpretations of statutes, even if public, are not entitled
to deference. See generally United States v.
Mead Corp., 533 U.S. 218 (2001). While this is
not a situation involving the interpretation of a
statute, the same requirements of public accessibility and formality are applicable in the
context of agency interpretations of regulations. . . . The non-public or informal understandings of agency officials concerning the
meaning of a regulation are thus not relevant.
387 F.3d at 54 (emphasis added).
The Seventh Circuit has likewise held that it will not
extend Auer deference to informal agency pronouncements such as the Ferg-Cadima letter. In Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003), that court explained
that Christensen and Mead have curtailed the scope of
Auer deference, limiting it to agency pronouncements
that carry the “force of law” and that would qualify for
deference under Chevron if they were purporting to interpret statutes:
Auer . . . gave full Chevron deference to an
agency’s amicus curiae brief; yet in the Christensen case the Supreme Court stated flatly
that “interpretations such as those in opinion
letters — like interpretations contained in policy statements, agency manuals, and enforce-

 28
ment guidelines, all of which lack the force of
law — do not warrant Chevron-style deference.” . . . Briefs certainly don’t have “the force
of law.” . . .
Probably there is little left of Auer. The theory
of Chevron is that Congress delegates to agencies the power to make law to fill gaps in statutes. See, e.g., United States v. Mead Corp.,
supra, 533 U.S. at 226–27. . . . It is odd to think
of agencies as making law by means of statements made in briefs, since agency briefs, at
least below the Supreme Court level, normally
are not reviewed by the members of the agency
itself; and it is odd to think of Congress delegating lawmaking power to unreviewed staff
decisions.
347 F.3d at 993–94 (Posner, J.). And in U.S. Freightways
Corp. v. Commissioner, 270 F.3d 1137 (7th Cir. 2001), the
Seventh Circuit applied Skidmore rather than Auer to
the IRS Commissioner’s interpretation of his regulations, because “the interpretive methodologies he has
used have been informal.” Id. at 1141–42.
Likewise, the Eleventh Circuit’s decision in Arriaga

v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1238

(11th Cir. 2002), applied Skidmore rather than Auer to
agency opinion letters that purport to interpret the
agency’s regulations.
Against the First, Seventh, and Eleventh Circuits
stand the Fourth Circuit as well as other courts of appeals that have found the lack of procedural formality

 29
irrelevant to whether the Auer-deference framework
should apply — even after this Court’s decisions in Christensen and Mead. See, e.g., Cordiano v. Metacon Gun
Club, Inc., 575 F.3d 199, 207–08 (2nd Cir. 2009) (holding
that “agency interpretations that lack the force of law,”
while not warranting deference when interpreting ambiguous statutes, “do normally warrant deference when
they interpret ambiguous regulations”); Encarnacion
ex. rel George v. Astrue, 568 F.3d 72, 78 (2nd Cir. 2009)
(holding agency’s interpretation is entitled to Auer deference “regardless of the formality of the procedures
used to formulate it”) (quotation omitted); Bassiri v.
Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006) (granting
Auer deference to agency interpretation “even if [adopted] through an informal process” that “is not reached
through the normal notice-and-comment procedure” and
that “does not have the force of law”); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affording Seminole
Rock deference “even when [the agency’s interpretation]
is offered in informal rulings such as in a litigating document”).
It appears the circuits are currently divided 4-3 on
whether an agency’s regulatory interpretation produced
through informal processes can qualify for Auer deference after Christensen and Mead. The Fourth Circuit’s
decision here directly implicates this circuit split, and it
is ripe for this Court’s review.

 30
B.

The Fourth Circuit’s Decision To Extend
Auer Deference To The Ferg-Cadima Letter
Is In Substantial Tension With Decisions In
The Ninth And Federal Circuits.

Another relevant feature of the Ferg-Cadima letter is
that it was issued solely in response to G.G.’s dispute
with the Board. Days after the Board passed its resolution of December 9, 2014, a transgender activist e-mailed
the Department and solicited the letter, specifically with
respect to the Board’s policy. App. 118a–120a. But this
fact was of no moment to the Fourth Circuit, which held
that Auer deference should apply even if the agency had
never before expressed these views apart from G.G.’s
dispute with Board. App. 17a. The Fourth Circuit had
company in reaching this conclusion: At least four other
courts of appeals agree that Auer deference should apply
even when the agency adopts its interpretation solely in
the context of the dispute before the court.10

10

Intracomm, Inc. v. Bajaj, 492 F.3d 285, 293 & n.6 (4th Cir. 2007)
(deferring to Secretary’s interpretation advanced in case under review); Woudenberg v. U.S. Dep’t of Agric., 794 F.3d 595, 599, 601
(6th Cir. 2015) (deferring to agency ruling in the case under review);
Bible ex rel. Proposed Class v. United Student Aid Funds, Inc., 799
F.3d 633, 639, 651 (7th Cir. 2015) (deferring to agency’s interpretation advanced in amicus briefs), cert. denied, 136 S. Ct. 1607 (2016);
Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1062–68
(10th Cir. 2014) (deferring to agency interpretation advanced during
administrative appeal); Polycarpe v. E&S Landscaping Serv. Inc.,
616 F.3d 1217, 1225 (11th Cir. 2010) (deferring to agency interpretation advanced in amicus brief).

 31
But opinions from the Ninth Circuit and the Federal
Circuit have refused to extend Auer deference in similar
situations. In Vietnam Veterans of America v. CIA, 811
F.3d 1068 (9th Cir. 2015), the Ninth Circuit refused to
apply Auer deference to an interpretation of agency
rules that was “ ‘developed . . . only in the context of this
litigation.’ ” Id. at 1078. And in Massachusetts Mutual
Life Insurance Co. v. United States, 782 F.3d 1354 (Fed.
Cir. 2015), the Federal Circuit refused to apply the Auer
framework to an IRS interpretation that was “advanced
for the first time in litigation.” Id. at 1369–70. So the
Fourth Circuit’s ruling implicates yet another division
among the courts of appeals, and the Court should grant
certiorari to resolve it.11
C.

The Nationwide Federal Injunction Decision
From Texas Also Conflicts With The Fourth
Circuit’s Approach.

The lower courts are also divided over whether Auer
deference should extend to the specific agency interpretations at issue in this case. Eight days ago, on August
21, 2016, a federal district court in Texas refused to ex11

To be sure, the Fourth Circuit’s decision to invoke Auer deference in the circumstances presented here was also wrong for a host
of other reasons, see Application for Stay, No. 16A52, at 18–29, including this Court’s reminder in Gonzales v. Oregon, 546 U.S. 243
(2006), that Auer deference is inappropriate where that pronouncement “cannot be considered an interpretation of the regulation” as
opposed to the underlying statute. Id. at 247. As discussed, the
Ferg-Cadima letter offered an interpretation of Title IX itself, and
not merely the regulation. See supra at 11.

 32
tend Auer deference to the Department’s bathroom,
locker room and shower edicts, finding that 34 C.F.R.
§ 106.33 unambiguously allows Title IX recipients to establish separate facilities on the basis of biological sex.
See Texas v. United States of America, Case No. 7:16-cv00054, ECF No. 58; Pet. App. 183a–229a. That decision is
significant here for two distinct reasons.
First, as a practical matter, it exacerbates the existing conflicts and disagreements over the proper application of Auer deference and Title IX to transgender individuals. Indeed, given that decision, and based on competing views of Auer, schools in one section of the Nation — states within the Fourth Circuit — are now bound
by the Department’s view of Title IX, while at the same
time the Department is currently prohibited from even
attempting to impose that same view on schools in the
rest of the Nation.
Second, the Texas decision highlights the urgent, nationwide importance of the issues presented in this petition. Every recipient of Title IX funds throughout the
Nation — ranging from universities to elementary
schools — is now being substantially affected by the disagreement among the lower courts about the proper application of Auer deference. That is an additional reason
for this court’s review, especially given the deep disagreements that already exist over whether Auer deference should extend to agency documents such as the
Ferg-Cadima letter.

 33
III.

THE
COURT
SHOULD
GRANT
CERTIORARI TO CONSIDER WHETHER
THE DEPARTMENT’S INTERPRETATION
OF TITLE IX AND 34 C.F.R. § 106.33 IS
BINDING.

Finally, granting this petition will give the Court an
excellent opportunity to determine whether the Department’s specific interpretation of Title IX is binding. In
fact, that interpretation is flatly wrong and therefore,
under any reasonable view of Auer, is not legally binding
on anyone.
1. Nothing in Title IX’s text or structure supports
the foundational premise of the Ferg-Cadima letter —
namely, that the proscription of discrimination “on the
basis of sex . . . includ[es] gender identity.” App. 121a.
The term “gender identity” is nowhere in Title IX. Congress knows how to legislate protection against gender
identity discrimination: it has done so elsewhere, but not
in Title IX.12 Conversely, numerous bills have attempted
to introduce the concept of gender identity into federal
laws, but failed.13 The interpretive alchemy of deeming
12

See, e.g., 42 U.S.C. § 13925(b)(13)(A) (prohibiting discrimination
based on “sex, gender identity …, sexual orientation, or disability”);
42 U.S.C. § 3796gg (assisting victims “whose ability to access traditional services and responses is affected by their … gender identity”).
13

See, e.g., H.R. 2015 (110th Cong. 2007); H.R. 3017 (111th Cong.
2009); S. 1584 (111th Cong. 2009); H.R. 1397 (112th Cong. 2011); S.
811 (112th Cong. 2011); H.R. 1755 (113th Cong. 2013); S. 815 (113th
Cong. 2013) (unenacted versions of Employment Non(continued…)

 34
“sex” to include “gender identity” would revise those legislative defeats into victories. That is not how statutory
interpretation works. See, e.g., Hively v. Ivy Tech Cmty.
Coll., __ F.3d __, 2016 U.S. App. LEXIS 13746, at *7 &
n.2 (7th Cir. July 28, 2016) (noting, “despite multiple efforts, Congress has repeatedly rejected legislation that
would have extended Title VII to cover sexual orientation”).
To the contrary, when federal law deploys the term
“sex” in anti-discrimination statutes, it prohibits discrimination based on “nothing more than male and female,
under the traditional binary conception of sex consistent
with one’s birth or biological sex.” Johnston v. Univ. of
Pittsburgh, 97 F.Supp.3d 657, 676 (W.D. Pa. 2015) (citing
Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th
Cir. 2007). As Judge Niemeyer’s dissent explained, during the period when Title IX was enacted and its regulations promulgated, “virtually every dictionary definition
of ‘sex’ referred to the physiological distinctions between
males and females, particularly with respect to their reproductive functions.” App. 54a (collecting definitions).
In other words, the prohibition on “sex” discrimination in
laws like Title IX and Title VII “do[es] not outlaw discrimination against . . . a person born with a male body
who believes himself to be a female, or a person born
with a female body who believes herself to be a male.”

Discrimination Act, which would have prohibited gender identity
discrimination).

 35
Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir.
1984).
2. Moreover, reading “sex” to include “gender identity” would make a hash of Title IX’s scheme allowing
facilities and programs to be separated by “sex.”14 If
“sex” signifies, not biology, but rather one’s “internal”
sense of maleness or femaleness, the whole concept of
permissible sex-separation collapses. What sense could
there be in allowing “separate living facilities for the different sexes,” 20 U.S.C. § 1686, if a biological male could
legally qualify as a woman based merely on his subjective perception of being one? The answer is none. Cf.
United States v. Virginia, 518 U.S. 515, 550 n. 19 (1996)
(admitting women to VMI “would undoubtedly require
alterations necessary to afford members of each sex privacy from the other sex in living arrangements”).
3. Nor is the Ferg-Cadima interpretation supported
by the theory of sex-stereotyping discrimination in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). Cf. App.
122a n.2 (relying on Price Waterhouse). A Price Waterhouse claim is “based on behaviors, mannerisms, and appearances,” such as when a male employee is fired because he “wear[s] jewelry . . . considered too effeminate,
14

See, e.g., 20 U.S.C. § 1686 (allowing “separate living facilities for
the different sexes”); 34 C.F.R. § 106.32 (allowing “separate housing
on the basis of sex,” provided facilities are “[p]roportionate in quantity” and “comparable in quality and cost”); 34 C.F.R. § 106.34 (allowing “separation of students by sex” within physical education
classes and certain sports “the purpose or major activity of which
involves bodily contact”).

 36
carr[ies] a serving tray too gracefully, or tak[es] too active a role in child rearing.” Johnston, 97 F.Supp.3d at
680 (internal quotations and citation omitted). But Price
Waterhouse does not require “employers to allow biological males to use women’s restrooms,” because “[u]se of a
restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.” Etsitty, 502 F.3d at 1224. If anything, the Board’s policy is the
opposite of sex stereotyping: it designates male and female restrooms based solely on biology, regardless of
whether a man or a woman satisfies some stereotypical
notion of masculinity or femininity. See, e.g., Johnston,
97 F.Supp.3d at 680–81 (rejecting sex stereotyping claim
on this basis).
4. Furthermore, an interpretation of Title IX according to the Ferg-Cadima view would render the statute unconstitutional, and must be avoided for that reason
alone. See, e.g., Rust v. Sullivan, 500 U.S. 173, 190 (1991)
(describing constitutional avoidance canon). For instance,
it would cause Title IX to violate the Spending Clause by
failing to give “clear notice” of conditions attached to
federal funding.15 No funding recipient could have had
“clear notice” of the novel interpretation of Title IX in
15

Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548 U.S. 291, 297
(2006) (clear notice absent where text “does not even hint” fees due
to prevailing party); NFIB v. Sebelius, 132 S. Ct. 2566, 2606 (2012)
(Congress’s spending clause power “does not include surprising participating States with post-acceptance or retroactive conditions”
(quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25
(1981)).

 37
this case. Indeed, the G.G. majority confirmed as much
by finding the Title IX regulation was ambiguous as applied to transgender individuals. App. 18a. Cf. Bennett v.
Ky. Dep’t of Educ., 470 U.S. 656, 666 (1985) (no “clear
notice” violation where there was “no ambiguity with respect to” funding condition).
5. Finally, taking the Ferg-Cadima letter’s construction of “sex” seriously would turn Title IX against itself.
As the district court pointed out, the relevant regulation
would bar the Board’s policy only if “sex” means solely
“gender identity” and excludes any notion of “biological
sex.” App. 99a–102a. As applied to Title IX, that preposterous construction would legalize just the kind of biologically based discrimination against men and women that
Title IX was enacted to prevent. For instance, schools
could exclude biological women from taking science classes or joining the chess team, so long as they allowed
biological men who identify as females to do so. Only
transgendered people would be protected under this Title IX regime; men and women who identify with their
biological sex would receive no protection at all.
Indeed, if “sex” means only “gender identity,” the
Board’s policy would not implicate Title IX at all because
it addresses only “biological sex” and excludes consideration of gender identity. But that is absurd: everyone
agrees that the Title IX regulation squarely addresses — and expressly allows — sex-separated restrooms,
exactly like the ones provided by the Board’s policy.

 38
CONCLUSION
Some regard transgender restroom access as one of
the great civil-rights issues of our time. But that makes
it all the more important to insist that federal officials
follow the procedures for lawmaking prescribed in the
Constitution and the Administrative Procedure Act. To
condone the agency behavior displayed in this case is to
condone future use of these maneuvers by other agency
officials, and in support of other causes — without any
way of ensuring that the Executive Branch will always
be controlled by people who share one’s most deeply held
beliefs.
At bottom, then, this case is not really about whether
G.G. should be allowed to access the boys’ restrooms, nor
even primarily about whether Title IX can be interpreted to require recipients to allow transgender students
into the restrooms and locker rooms that accord with
their gender identity. Fundamentally, this case is about
whether an agency employee can impose that policy in a
piece of private correspondence. If the Court looks the
other way, then the agency officials in this case — and in
a host of others to come — will have become a law unto
themselves.

 39
ed.

The petition for a writ of certiorari should be grantRespectfully submitted.

JONATHAN F. MITCHELL
D. JOHN SAUER
JAMES OTIS LAW GROUP,
LLC
12977 North Forty Drive
Suite 214
St. Louis, MO 63141
(314) 682-6067
DAVID P. CORRIGAN
JEREMY D. CAPPS
M. SCOTT FISHER JR.
HARMAN, CLAYTOR,
CORRIGAN & WELLMAN
Post Office Box 70280
Richmond, VA 23255
(804) 747-5200
August 29, 2016

S. KYLE DUNCAN
Counsel of Record
GENE C. SCHAERR
SCHAERR DUNCAN LLP
1717 K Street NW,
Suite 900
Washington, DC 20006
(202) 714-9492
KDuncan@SchaerrDuncan.com