No. 16-273

d
IN THE

Supreme Court of the United States
GLOUCESTER COUNTY SCHOOL BOARD,
Petitioner,

—v.—

G.G.,

BY HIS NEXT FRIEND AND MOTHER ,

DEIRDRE GRIMM,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

Gail M. Deady
Rebecca K. Glenberg (of counsel)
AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA FOUNDATION, INC.
701 E. Franklin Street, Suite 1412
Richmond, VA 23219

Joshua A. Block
Counsel of Record
James D. Esseks
Leslie Cooper
Louise Melling
Steven R. Shapiro
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
(212) 549-2500
jblock@aclu.org

 QUESTIONS PRESENTED
1. Whether, in the absence of any “special
justification,” this Court should depart from stare
decisis and overturn long-standing principles of
administrative law embodied in Auer v. Robbins, 519
U.S. 452 (1997), and similar precedent dating back to
1945?
2.
Whether Auer deference applies to an
agency’s interpretation of its own regulation when (a)
that interpretation is articulated in an opinion letter,
a statement of interest and an amicus brief, and (b)
the interpretation is not a post hoc justification to
defend an agency decision under attack?
3.
Whether a school board policy that
categorically prohibits transgender students from
using restrooms consistent with their gender
identity, effectively excluding them from using the
common restrooms used by other students, violates
Title IX and its implementing regulations?

i

 TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................ i
TABLE OF AUTHORITIES ...................................... iv
INTRODUCTION ....................................................... 1
STATEMENT OF THE CASE .................................... 4
REASONS FOR DENYING THE PETITION ......... 16
I.

THIS COURT HAS ADHERED TO AUER
FOR DECADES, AND THERE IS NO
SPECIAL JUSTIFICATION FOR
REVISITING THAT LONGSTANDING
PRECEDENT NOW. ...................................... 16

II.

THIS CASE DOES NOT IMPLICATE ANY
ALLEGED CIRCUIT SPLIT REGARDING
DEFERENCE TO INFORMAL AGENCY
ACTION OR INTERPRETATIONS
ANNOUNCED DURING LITIGATION........ 18

III.

THIS CASE IS A POOR VEHICLE FOR
RESOLVING TITLE IX’S APPLICATION
TO TRANSGENDER STUDENTS’ USE
OF RESTROOMS ........................................... 21
A.

No Other Court of Appeals Has
Considered the Question Presented ...... 21

B.

The Petition Seeks Interlocutory
Review Without a Final Judgment ....... 23

C.

This Case Involves Only Restrooms,
Not Locker Rooms .................................. 25

D.

This Case Is Not a Vehicle for Evaluating
the Detailed Guidance Issued by the
Department of Education ...................... 27

ii

 E.
IV.

This Case Is Not a Vehicle for Addressing
Pennhurst Challenges ............................ 28

THE JUDGMENT BELOW IS CORRECT ... 29
A.

The Interpretation of 34 C.F.R. § 106.33
Adopted Below Is Correct, With or
Without Auer Deference ........................ 29

B.

The Department’s Reasonable
Interpretation of its Own Regulation
Is Worthy of Deference Under Any
Standard ................................................. 34

CONCLUSION.......................................................... 37

iii

 TABLE OF AUTHORITIES
CASES
Aaron v. Cooper, 357 U.S. 566 (1958) ...................... 24
Arizona v. Evans, 514 U.S. 1 (1995)......................... 22
Arriaga v. Fla. Pac. Farms, L.L.C.,
305 F.3d 1228 (11th Cir. 2002) ............................. 20
Auer v. Robbins, 519 U.S. 452 (1997) ................ passim
Bd. of Educ. of the Highland Local Sch. Dist. v.
United States Dep’t of Educ., No. 2:16-CV-524,
2016 WL 4269080 (S.D. Ohio Aug. 15, 2016) ....... 22
Bennett v. Ky. Dep’t of Educ., 470 U.S. 656 (1985) .. 29
Biediger v. Quinnipiac Univ.,
691 F.3d 85 (2d Cir. 2012)..................................... 35
Bowers v. Hardwick, 478 U.S. 186 (1986) ................ 27
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945) ........................................... 2, 16
Califano v. Yamasaki, 442 U.S. 682 (1979) ....... 22, 23
Carcaño v. McCrory, No. 1:16CV236, 2016 WL
4508192 (M.D.N.C. Aug. 26, 2016) ................ passim
Chase Bank USA, N.A. v. McCoy,
562 U.S. 195 (2011) ......................................... 18, 19
City of Arlington, Tex. v. FCC,
133 S. Ct. 1863 (2013) ........................................... 36
Cruzan v. Special Sch. Dist, No. 1,
294 F.3d 981 (8th Cir. 2002) ................................. 25
Davis ex rel. LaShonda D., v. Monroe Cty. Bd. of
Educ., 526 U.S. 629 (1999) ........................ 28, 29, 33

iv

 DTD Enters., Inc. v. Wells, 130 S. Ct. 7 (2009) ........ 24
Elrod v. Burns, 427 U.S. 347 (1976) .......................... 4
Falken v. Glynn Cty., Ga.,
197 F.3d 1341 (11th Cir. 1999) ............................. 20
Fed. Exp. Corp. v. Holowecki, 552 U.S. 389 (2008) . 36
Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274 (1998) ............................................... 28
Gloucester Cty. Sch. Bd. v. G.G., No. 16A52,
2016 WL 4131636 (U.S. Aug. 3, 2016) .................. 15
Gonzales v. Oregon, 546 U.S. 243 (2006) ................. 35
Halliburton Co. v. Erica P. John Fund, Inc.,
134 S. Ct. 2398 (2014) ........................................... 17
Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) ................................... 28, 30, 34
Kahn v. Shevin, 416 U.S. 351 (1974) ....................... 30
Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003) ....... 19
Lawrence v. Texas, 539 U.S. 557 (2003) ................... 27
M.A.B. ex rel. L.A.B. & L.F.B. v. Bd. of Educ.,
1:16-cv-02622-GLR (D. Md. filed July 19, 2016) .. 22
Mass. Mutual Life Ins. Co. v. United States,
782 F.3d 1354 (Fed. Cir. 2015) ............................. 20
Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ............................................... 27
Mount Soledad Mem’l Ass’n v. Trunk,
132 S. Ct. 2535 (2012) ........................................... 24
Nebraska v. United States, 4:16-cv-03117-JMG-CRZ
(D. Ne. filed July 8, 2016) ..................................... 22

v

 Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998) ................................................. 24
Pennhurst State Sch. & Hospital v. Halderman,
451 U.S. 1 (1981) ......................................... 3, 28, 29
Perez v. Mortgage Bankers Ass’n,
135 S. Ct. 1199 (2015) ..................................... 16, 18
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .. 30
Schindler Elevator Corp. v. United States ex rel. Kirk,
563 U.S. 401 (2011) ................................................. 4
Skidmore v. Swift & Co., 323 U.S. 134 (1944) .. passim
Students & Parents for Privacy v. United States Dep’t
of Educ., No. 16 C 4945, 2016 WL 3269001
(N.D. Ill. June 15, 2016) ........................................ 22
Talk America, Inc. v. Michigan Bell Telephone Co.,
564 U.S. 50 (2011) ................................................. 16
Texas v. United States, No. 7:16-CV-00054-O, 2016
WL 4426495 (N.D. Tex. Aug. 21, 2016) .... 22, 23, 28
U.S. Freightways Corp. v. Commissioner,
270 F.3d 1137 (7th Cir. 2001) ............................... 19
United States v. Lachman,
387 F.3d 42 (1st Cir. 2004).................................... 19
United States v. Mendoza, 464 U.S. 154 (1984) ....... 22
United States v. Munsingwear, 340 U.S. 36 (1950) . 11
United Student Aid Funds, Inc. v. Bible,
136 S. Ct. 1607 (2016) ..................................... 16, 17
Va. Military Inst. v. United States,
508 U.S. 946 (1993) ............................................... 24

vi

 Vietnam Veterans of Am. v. CIA,
811 F.3d 1068 (9th Cir. 2015) ............................... 20
Whitaker v. Kenosha Unified Sch. Dist., 2:16-cv00943 (E.D. Wis. filed July 19, 2016) ................... 22
CONSTITUTION & STATUTES
U.S. Const. amend. XIV ...................................... 10, 15
Title VII, Civil Rights Act of 1964,
52 U.S.C. § 2000e et seq. ................................. 12, 35
Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681 et seq................................... passim
20 U.S.C. § 1681(a) ........................................... 1, 29
20 U.S.C. § 1682 .................................................... 34
20 U.S.C. § 1686 .................................................... 35
RULES
34 C.F.R. § 106.33 .............................................. passim
Sup. Ct. R. 10(a) ........................................................ 22
Sup. Ct. R. 11 ............................................................ 24
LEGISLATIVE MATERIALS
117 Cong. Rec. 30407 (1971)..................................... 35
118 Cong. Rec. 5807 (1972) ...................................... 35
OTHER AUTHORITIES
Am. Psychiatric Ass’n, Gender Dysphoria
Fact Sheet (2013), http://www.dsm5.org/documents
/gender%20dysphoria%20fact%20sheet.pdf ........... 5

vii

 Am. Psychological Ass’n, Guidelines for Psychological
Practice with Transgender and Gender
Nonconforming People (December 2015),
http://www.apa.org/practice/guidelines/transgender
.pdf ........................................................................... 4
Aruna Saraswat, M.D., et. al., Evidence Supporting
the Biologic Nature of Gender Identity,
21 Endocrine Practice 199 (2015) ........................... 4
Cass R. Sunstein & Adrian Vermeule, The
Unbearable Rightness of Auer, Forthcoming U. Chi.
L. Rev. (2016)................................................... 17, 18
Catherine Crocker, Ginsburg Explains Origins of
Sex, Gender, Associated Press (Nov. 21, 1993) .... 30
Conor Clarke, The Uneasy Case Against Auer &
Seminole Rock, 33 Yale L. & Pol’y Rev. 175
(2014) ..................................................................... 17
Gloucester County School Board Video Tr., Nov. 11,
2014, http://gloucester.granicus.com/MediaPlayer.
php?view_id=10&clip_id=1065 ............................... 8
U.S. Dep’t of Educ. Office of Elementary & Secondary
Educ., Examples of Policies and Emerging
Practices for Supporting Transgender Students
(May 2016), http://www2.ed.gov/about/offices/list/
oese/oshs/emergingpractices.pdf. ........ 14, 26, 33, 36
Va. Dep’t of Educ. Guidelines for Sch. Facilities in
Va. Pub. Schs. 20 (2013), http://www.doe.virginia.
gov/support/facility_construction/school_constructi
on/regs_guidelines/guidelines.pdf. ........................ 26

viii

 INTRODUCTION
This case involves a 17-year-old boy who is
transgender. Although he was designated female at
birth, G. has a male gender identity. He has a state
ID identifying him as male, and, as a result of
hormone therapy, has facial hair, a deep voice, and
other male secondary sex characteristics. In every
aspect of life outside school, G. is recognized as a boy.
At school, however, G. is singled out from every other
student and forced to use separate restrooms because
his school board has concluded that G.’s mere
presence in a restroom used by other boys is
unacceptable.
Title
IX
protects
everyone—including
transgender students—from being “excluded from
participation in” or “denied the benefits of” any
education program or activity “on the basis of sex.”
20 U.S.C. § 1681(a). The central question in this case
is whether 34 C.F.R. § 106.33, a regulation allowing
schools to “provide separate toilet . . . facilities on the
basis of sex,” implicitly authorizes schools to prohibit
transgender boys and girls from using restrooms
consistent with their gender identity, effectively
excluding them from using the common restrooms
used by other students.
When the regulation was drafted in 1975, few
would have conceived that, as result of advances in
treatment and support for transgender youth, a
student like G. would be assigned a female sex at
birth and yet have facial hair and other male
secondary sex characteristics, have a male
designation on his government ID card, and be able
to live all aspects of life in accordance with his male
gender identity. Faced with this reality, the

1

 Department of Education (the “Department”)
concluded that the only way to “provide separate
toilet . . . facilities on the basis of sex” in a manner
that does not deprive students of equal educational
opportunity—and the only way to make common
restrooms truly accessible—is to allow transgender
students to use restrooms consistent with their
gender identity.
In the decision below, the Fourth Circuit
determined that the Department’s interpretation was
neither clearly erroneous nor inconsistent with the
statutory text, and therefore deferred to the
Department’s reasonable interpretation of its own
regulation under Auer v. Robbins, 519 U.S. 452
(1997). Petitioner now seeks a writ of certiorari to
review three questions:
First, Petitioner asks this Court to overrule
Auer. For decades this Court has adhered to the
principle that an agency’s interpretation of its own
regulations should generally be “controlling unless
plainly erroneous or inconsistent with the
regulation.” Id. at 461 (citing Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945) (internal
quotation marks omitted)). In the past five years,
three sitting Justices have called for Auer to be
overruled or reconsidered, but a majority of this
Court has not expressed interest in doing so. There is
no special justification for overturning this settled
principle of administrative law now.
Second, Petitioner asks this Court to resolve a
purported circuit split regarding whether Auer
applies to
unpublished opinion letters or
interpretations announced in the context of an
ongoing dispute. The first purported
split
is

2

 questionable; the second one is nonexistent; and
neither one is implicated by this case because the
Department’s interpretation pre-dated the litigation
and was articulated, not just in an opinion letter, but
also in a statement of interest and amicus brief.
Third, Petitioner asks this Court to resolve the
underlying question of whether Title IX and its
regulations allow schools to effectively exclude
transgender students from the common restrooms by
prohibiting them from using restrooms consistent
with their gender identity. That question may
ultimately warrant this Court’s attention, but this is
the wrong case at the wrong time. There is no circuit
split and no final judgment; there are no claims
involving locker rooms or the detailed guidance
subsequently issued by the Department; and
Petitioner has waived any argument based on
Pennhurst State Sch. & Hospital v. Halderman, 451
U.S. 1 (1981). The Court should allow the issue to
continue percolating in the lower courts until a more
appropriate vehicle arrives.
Moreover, the decision below was correctly
decided and does not call for the Court’s immediate
review. The Department’s interpretation of its own
regulation is the correct interpretation, and it is the
interpretation that should prevail regardless of
whether it receives Auer deference, Skidmore
deference, or no deference at all. For all these
reasons, the petition for a writ of certiorari should be
denied.

3

 STATEMENT OF THE CASE
A.

Factual background.1

“Gender identity” is an established medical
concept, referring to one’s sense of oneself as
belonging to a particular gender. C.A. App. 36. It is
an innate and immutable aspect of personality, with
biological roots. See id.; Aruna Saraswat, M.D., et.
al., Evidence Supporting the Biologic Nature
of Gender Identity, 21 Endocrine Practice 199, 199202 (2015).2 Everyone has a gender identity.
Transgender individuals, however, have a gender
identity that is different than the sex assigned to
them at birth, which is usually based on an
examination of external anatomy.3
G. came out to his parents as a transgender
boy during his freshman year of high school when the
On a motion to dismiss and motion for preliminary injunction,
the facts alleged in the Complaint and uncontroverted
declarations must be taken as true. See Schindler Elevator
Corp. v. United States ex rel. Kirk, 563 U.S. 401, 404 n.2 (2011);
Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976).
1

Petitioner mischaracterizes gender identity as something
“subjective” and impossible to verify or define. Pet. 1. There is
no dispute that G. is a transgender boy and, as a result of
hormone therapy, has objective physiological characteristics
that differ from those of typical non-transgender girls.
2

Guidelines from the American Psychological Association no
longer use the term “biological sex” when referring to sex
assigned at birth. See Am. Psychological Ass’n, Guidelines for
Psychological Practice with Transgender and Gender
Nonconforming People, App. A (December 2015), http://www.
apa.org/practice/guidelines/transgender.pdf. “Biological sex” is
an inaccurate description of a person’s sex assigned at birth
because gender identity also has biological roots.
3

4

 stress of concealing his gender identity became so
great he was unable to attend class. C.A. App. 12.
G. began seeing a psychologist with experience
counseling transgender youth, who diagnosed G.
with gender dysphoria.4 G.’s psychologist gave him a
“Treatment Documentation Letter” confirming that
he was receiving treatment for gender dysphoria and
stating that he should be treated as a boy in all
respects, including when using the restroom. Id. at
13. Consistent with that medical advice, G. uses the
boys’ restrooms in all public venues, such as
restaurants, libraries, and shopping centers. Id. at
13-14.5

Gender dysphoria is the diagnostic term for the feeling of
incongruence between an individual’s gender identity and an
individual’s sex assigned at birth, and the resulting distress
caused by that incongruence. Id. at 11-12. It is a serious
medical condition codified in the Diagnostic and Statistical
Manual of Mental Disorders and International Classification of
Diseases. Id. at 37. “[G]ender nonconformity is not in itself
a mental disorder. The critical element of gender dysphoria is
the presence of clinically significant distress associated with
the condition.” Am. Psychiatric Ass’n, Gender Dysphoria
Fact Sheet, at 1 (2013), http://www.dsm5.org/documents/gender
%20dysphoria%20fact%20sheet.pdf. Treatment for gender
dysphoria is thus designed to help transgender individuals live
congruently with their gender identity and eliminate clinically
significant distress. C.A. App. 37. The World Professional
Association for Transgender Health (“WPATH”) has established
international standards of care for gender dysphoria, which are
recognized as authoritative by the leading medical and mental
health organizations, including the American Medical
Association, the Endocrine Society, and the American
Psychological Association. Id.
4

G. continues to receive transition-related care in accordance
with WPATH standards. In December 2014, G. began hormone
therapy. Id. The WPATH standards do not permit genital
5

5

 In August 2014, before beginning his
sophomore year, G. and his mother met with the
principal and guidance counselor to explain that G. is
a transgender boy and would be attending school as a
male student. Id. at 14. G. initially chose to use a
restroom in the nurse’s office, but after a few weeks
G. found that using a separate restroom was
stigmatizing and that the inconvenient location
interfered with his ability to attend class on time.
Id. at 15.6
With the principal’s permission, G. began
using the boys’ restroom on October 20, 2014, and
continued doing so for seven weeks without incident.
C.A. App. 15.7 Nevertheless, some adults in the
community were upset to learn a transgender boy
was using the boys’ restrooms at school. Id. Those
adults contacted the Gloucester County School Board
(the “Board”) demanding that the transgender
student (who was not publicly identified until later)
be barred from the boys’ restrooms. Id.
The Board took no action for several weeks
until Board member Carla Hooks proposed a policy
for public debate at the Board’s meeting on

surgery for minors, Pet. App. 9a, but in June 2016, G. had chest
reconstruction surgery. Petitioner’s statement that G. has not
“had a sex change operation,” Pet. 5, is no longer correct.
Petitioner’s assertion that “school officials” did not initially
think G. should use the boys’ restroom, Pet. 5, lacks foundation
in the Complaint or the preliminary injunction record.
6

G. asked to continue using a home-bound program for physical
education. He therefore does not use the school locker rooms.
Pet. App. 9a n.2.
7

6

 November 11, 2014. Its operative language stated
that:
It shall be the practice of the GCPS 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 15-16. G. and his parents attended the
meeting to speak against the policy. Id. at 16.
When G. spoke, he told the Board:
I use the restroom, the men’s public
restroom, in every public space in
Gloucester County and others. I have
never once had any sort of confrontation
of any kind.
...
All I want to do is be a normal child and
use the restroom in peace, and I have
had no problems from students to do
that—only from adults. The adults are
the only people who have been trying to
restrict my rights.
...
No one has given me any problem, and I
have never been happier exercising my
right to be who I am. I did not ask to be
this way, and it’s one of the most
difficult things anyone can face.

7

 ...
I deserve the rights of every other
human being. I am just a human. I am
just a boy.
Gloucester County School Board Video Tr., Nov. 11,
2014, at 25:00 – 27:22.8 The Board deferred voting
on the policy until its meeting on December 9, 2014.
C.A. App. 17.
A week before the next meeting, the Board
announced plans to increase privacy protections for
all students by “adding or expanding partitions
between urinals in male restrooms, and adding
privacy strips to the doors of stalls in all restrooms.”
Id. The Board also announced “plans to designate
single stall, unisex restrooms . . . to give all students
the option for even greater privacy.” Id.
Speakers at the December Board meeting
nonetheless demanded that the Board exclude G.
from the boys’ restroom without waiting for the
privacy protections to be installed, and they
threatened to vote Board members out of office if
they refused. Id. at 18. One speaker called G. a
“freak” and compared him to a person who thinks he
is a dog and wants to urinate on fire hydrants. Id.
The Board voted 6-1 to pass the policy
introduced
the
previous
month
prohibiting
transgender students from using restrooms
consistent with their gender identity. Id. It is a
categorical rule prohibiting administrators from ever
allowing transgender students to use facilities
Available at http://gloucester.granicus.com/MediaPlayer.php?
view_id=10&clip_id=1065.
8

8

 consistent with their gender identity regardless of
the configuration of the bathroom or the individual
circumstances of any student.
No one contends G. should use the girls’
restrooms. Even before G. transitioned, girls objected
to his presence in the girls’ restrooms because they
perceived him to be male. Id. at 18. The necessary
and foreseen consequence of excluding G. from the
boys’ restrooms is that he, and only he, will have to
use an “alternative appropriate private facility.” Id.
at 16.
The public debate about which restrooms he
should use has been humiliating for G., who feels
that the Board’s actions have turned him into
“a public spectacle” before the entire community,
“like a walking freak show.” Id. at 31. Being forced to
use separate restrooms physically and symbolically
marks G. as different, isolates G. from his peers, and
brands him as unfit to share the same restrooms as
others. Id. at 19. The policy is an official decree that
G.’s mere presence in a restroom is unacceptable and
that he should be treated differently than everyone
else.
The Board subsequently converted a faculty
restroom and two utility closets into single-stall
restrooms. Although any student is allowed to use
those restrooms, no one actually does so. Id. For G.,
the prospect of using the converted single-stall
restrooms, which were created for the specific
purpose of isolating him from his peers, is
humiliating. Instead he tries to avoid using school
restrooms entirely. Id. If that is not possible,
he uses the nurse’s restroom, which still makes
G. feel embarrassed and humiliated, knowing that

9

 everyone who sees him enter the nurse’s office knows
he is there because he is transgender and has been
barred from the restrooms other boys use. Id. at 33.
To avoid using the restroom, G. avoids
drinking liquids and tries not to urinate during the
school day. Id. at 19. As a result, G. has repeatedly
developed painful urinary tract infections and felt
distracted and uncomfortable in class. Id. A
nationally recognized expert in the treatment of
gender dysphoria in adolescents evaluated G. and
concluded that the stigma he experiences every time
he needs to use the restroom “is a devastating blow
to [G.] and places him at extreme risk for immediate
and long-term psychological harm.” Id. at 42.
B.

Proceedings Below.

The day after the 2014-15 school year ended,
G. filed a complaint and motion for preliminary
injunction against the Board, arguing that the new
policy discriminates against him on the basis of sex,
in violation of Title IX and the Equal Protection
Clause. C.A. App. 20-22. The Complaint seeks
injunctive relief and damages for both claims. Id. at
23.
An implementing regulation for Title IX,
34 C.F.R. § 106.33, authorizes schools to provide
separate restrooms for boys and girls, but does not
specifically address which restrooms transgender
boys and transgender girls should use. Since 2013,
the Department of Education has advised schools
that “[w]hen a school elects to separate or treat
students differently on the basis of sex . . . a school
generally must treat transgender students consistent
with their gender identity.” C.A. App. 55. On

10

 January 7, 2015, The Department issued an opinion
letter confirming that this principle applies in the
context of restrooms. Id. at 54-56.9 The Department
further elaborated on its interpretation with a
statement of interest filed with the district court and
an amicus brief submitted to the Fourth Circuit. Pet.
App. 13a
The district court granted the Board’s crossmotion to dismiss the Title IX claim and denied
G.’s motion for a preliminary injunction. Pet. App.
84a-117a. G. appealed the denial of a preliminary
injunction and asked the Fourth Circuit to exercise
pendant appellate jurisdiction over the dismissal of
his Title IX claim. Pl’s C.A. Br. at 1.10
On April 19, 2016, the Fourth Circuit reversed
the dismissal of the Title IX claim and vacated the
denial of a preliminary injunction. Pet. App. 1-60a.
With respect to G.’s Title IX claim, the Fourth Circuit
held that the Department’s “interpretation of its own
regulation, [34 C.F.R.] § 106.33, as it relates to
restroom access by transgender individuals, is
entitled to Auer deference and is to be accorded
controlling weight in this case.” Pet. App. 25a.
The record does not reflect the identity of the individual who
requested the opinion letter because it was redacted in public
filings. No. 4:15-cv-00054-RGD-TEM, ECF Nos. 28-1, 28-2 (E.D.
Va. June 29, 2015). Despite the redaction, Petitioner states that
it has identified the individual by opening the redacted
document “in Preview for Mac.” Pet. 8 n.3.
9

Because the Fourth Circuit exercised jurisdiction over the
motion to dismiss the Title IX claim, which includes a claim for
damages, its decision would not be vacated under United States
v. Munsingwear, 340 U.S. 36 (1950), even if the claims for
injunctive relief were to become moot upon G.’s graduation.
10

11

 The court methodically considered all the
conditions for applying Auer. First, the court
examined the text of the regulation to determine
whether it unambiguously indicated which restroom
a transgender student should use. Pet. App. 19-20a.
It concluded that “[a]lthough 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 female for the
purpose of access to sex-segregated restrooms.” Id.
The court then examined whether the
Department’s interpretation of 34 C.F.R. § 106.33
was plainly erroneous or inconsistent with the
regulation’s text. Pet. App. 20-23a. Once again, the
court independently reviewed the text and
determined that dictionaries contemporaneous to the
passage of Title VII and Title IX defined “sex”
as “the character of being male or female” or “the
sum of the morphological, physiological, and
behavioral peculiarities . . . that is typically
manifested as maleness or femaleness.” Pet. App.
21a. These dictionary definitions thus “shed[] little
light on how exactly to determine the ‘character of
being either male or female’ where those indicators
diverge.” Pet. App. 22a. The court concluded that
ED’s interpretation of the regulation was therefore
consistent with the regulation’s text and not clearly
erroneous. Pet. App. 21-23a.
Finally, the court determined that the
Department’s interpretation reflected its fair and
reasoned judgment and not a post-hoc litigating
position. Pet. App. 23-24a. As the Fourth Circuit
pointed out, the Department’s interpretation dated
back to 2013 and was consistent with “the existing

12

 guidance[] and regulations of a number of federal
agencies—all of which provide that transgender
individuals should be permitted access to the
restroom that corresponds with their gender
identities.” Pet. App. 24a.
In response to arguments that G.’s use of the
boy’s restroom would infringe the constitutional
privacy rights of other students, the court noted that
the cases cited by the Board involved students who
were videotaped naked in a locker room or
indiscriminately strip searched. “G.G.’s use—or for
that matter any individual’s appropriate use—of a
restroom [does] not involve the [same] type of
intrusion.” Pet. App. 25-26a n.10. That is especially
true here because of the partitions between urinals
and privacy strips for stall doors. All students who
want greater privacy for any reason may also use one
of the new single-stall restrooms. Pet App. 11a;
accord Pet. App. 37-38a (Davis, J., concurring).
Senior Judge Davis concurred and emphasized
that “[t]he uncontroverted facts before the district
court demonstrate that as a result of the Board’s
restroom policy, G.G. experiences daily psychological
harm that puts him at risk for long-term
psychological harm.” Pet. App. 37a. Judge Davis
urged the district court on remand to take “prompt
action” because “[b]y the time the district court
issues its decision, G.G. will have suffered the
psychological harm the injunction sought to prevent
for an entire school year.” Pet. App. 39a.
Judge Niemeyer dissented. Pet. App. 40-60a.
He did not identify any privacy concerns raised by
the facts of this case and acknowledged that “the
risks to privacy and safety are far reduced” in

13

 the context of restrooms. Pet. App. 53a. Judge
Niemeyer instead focused on transgender students’
use of locker rooms and potential exposure to
“private body parts.” Pet. App. 52a. The dissent did
not contend it would be appropriate for G. to use the
girls’ restrooms. Pet. App. 59a.
After the Fourth Circuit’s ruling, the
Department of Education issued comprehensive
guidance to school districts on how to provide
transgender students equal access to school
resources consistent with Title IX. Pet. App. 126142a. The Department also provided examples of
school policies from across the country.11
On May 31, 2016, the Fourth Circuit denied
rehearing en banc. Pet. App. 60-61a. Judge Niemeyer
dissented from denial of panel rehearing. Pet. App.
61-66a. The court subsequently denied the Board’s
motion to stay the mandate pending disposition of a
petition for certiorari, with Judge Niemeyer again
dissenting. Pet. App. 67-70a.
On remand, the district court entered a
preliminary injunction allowing G. to use the boys’
restroom at school. Pet. App. 71-72a. The court
emphasized that the injunction applies only to G.
and only to restrooms at the high school. Pet. App.
72a. The district court and the Fourth Circuit, over
Judge Niemeyer’s dissent, denied the Board’s
motions to stay the preliminary injunction pending
U.S. Dep’t of Educ. Office of Elementary & Secondary
Educ., Examples of Policies and Emerging Practices for
Supporting Transgender Students (“Examples of Policies”) at 12, 7-8 (May 2016), http://www2.ed.gov/about/offices/list/
oese/oshs/emergingpractices.pdf.
11

14

 appeal. Pet. App. 73-75a, 76-81a. Judge Davis
concurred, responding to the dissent’s assertion that
the G.G. opinion was “unprecedented.” Pet. App.
79a. He noted that “[t]he First, Sixth, Ninth, and
Eleventh Circuits have all recognized that
discrimination against a transgender individual
based on that person’s transgender status is
discrimination because of sex under federal civil
rights statutes and the Equal Protection Clause of
the Constitution.” Pet. App. 78a. Judge Davis
explained that the panel’s decision rested on “this
long-settled jurisprudential foundation.” Id.
On August 3, 2016, this Court granted the
Board’s application to stay and recall the mandate
and stay the preliminary injunction pending
disposition of the Board’s petition for certiorari.
Gloucester Cty. Sch. Bd. v. G.G., No. 16A52, 2016 WL
4131636 (U.S. Aug. 3, 2016).
On August 29, 2016, the Board filed a
combined petition for (a) an interlocutory writ of
certiorari from the Fourth Circuit’s ruling on the
motion to dismiss, and (b) a writ of certiorari before
judgment from the district court’s preliminary
injunction order. Pet 17.

15

 REASONS FOR DENYING THE WRIT
I.

THIS COURT HAS ADHERED TO
AUER FOR DECADES, AND THERE
IS NO SPECIAL JUSTIFICATION FOR
REVISITING THAT LONGSTANDING
PRECEDENT NOW.

Auer deference is a longstanding principle of
administrative law, dating back to this Court’s
decision in Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945). For decades this Court has
adhered to the principle that an agency’s
interpretation of its own regulations should generally
be given “controlling weight unless it is plainly
erroneous or inconsistent with the regulation.” Id. at
414. “Occasionally, Members of this Court have
argued in separate writings that the Court failed
appropriately to apply Seminole Rock deference, but
in none of those cases did the majority opinions of the
Court expressly refuse to do so.” Perez v. Mortgage
Bankers Ass’n, 135 S. Ct. 1199, 1214 n.2 (2015)
(Thomas, J., dissenting).
The first time any member of the Court called
Auer deference into question was Justice Scalia’s
concurring opinion in Talk America, Inc. v. Michigan
Bell Telephone Co., 564 U.S. 50, 67 (2011) (Scalia, J.,
concurring). Over the next five years, three other
Justices have called for Auer to be overruled or
reconsidered, but a majority of this Court has not
expressed interest in doing so. See United Student
Aid Funds, Inc. v. Bible, 136 S. Ct. 1607, 1608 (2016)
(Thomas, J., dissenting from denial of certiorari)
(collecting cases). Just last term, the Court declined
to grant certiorari in a case calling for Auer to be

16

 reconsidered and overruled. See Petition for Writ of
Certiorari, United Student Aid Funds, Inc. v. Bible,
136 S. Ct. 1607 (No. 15-861).
In asking this Court to overturn longstanding
precedent that has been woven into the fabric of
administrative law, Petitioner bears a heavy burden.
“Before overturning a long-settled precedent” this
Court requires “‘special justification,’ not just an
argument that the precedent was wrongly decided.”
Halliburton Co. v. Erica P. John Fund, Inc., 134 S.
Ct. 2398, 2407 (2014). As this Court has further
recognized, “the principle of stare decisis has special
force in respect to statutory interpretation because
Congress remains free to alter what [the Court] ha[s]
done.” Id. at 2411 (internal quotation marks
omitted).
Here, Congress has not acted and Petitioner
offers no special justification for overruling Auer
other than disagreement with its holding.
By contrast, the reliance interests of regulated
communities that depend on agency guidance to
reduce uncertainty about their legal obligations, and
the clarity provided by a stable “background rule,”
reinforce the appropriateness of adhering to stare
decisis in this context. See Cass R. Sunstein &
Adrian Vermeule, The Unbearable Rightness of Auer,
Forthcoming U. Chi. L. Rev., at 22-34 (2016),
http://ssrn.com/abstract=2716737; Conor Clarke, The
Uneasy Case Against Auer & Seminole Rock, 33 Yale
L. & Pol’y Rev. 175, 193 (2014).
Abandoning Auer would “have radical
implications for delegation, the combination of
functions in agencies, and other fundamental
features of the modern administrative
state.”

17

 Sunstein & Vermeule, supra, at 2. When an agency
oversteps, this Court has tools at its disposal to
withhold Auer deference. Perez, 135 S. Ct. at 1208
n.4. Dramatically altering foundational principles of
administrative law is neither necessary nor
appropriate.
II.

THIS CASE DOES NOT IMPLICATE ANY
ALLEGED CIRCUIT SPLIT REGARDING
DEFERENCE TO INFORMAL AGENCY
ACTION
OR
INTERPRETATIONS
ANNOUNCED DURING LITIGATION.

Petitioner argues that this case provides a
vehicle for resolving two purported circuit splits
regarding the application of Auer. The first purported
split is questionable; the second one is nonexistent;
and neither one is implicated by this case.
First, Petitioner claims the circuits are split
regarding the level of deference owed to unpublished
agency opinion letters. Pet. 26-29. But if such a split
exists, it is not relevant to this case. By focusing
exclusively on the “Ferg-Cadima letter,” Petitioner
attempts to portray the Fourth Circuit’s decision as
an example of deference to “a piece of private
correspondence” from “an agency employee.” Pet. 38.
Even if that characterization were accurate, the
Department’s interpretation of 34 C.F.R. § 106.33
was not limited to a single opinion letter. It was
thoroughly explained in the statement of interest
filed at the district court and in the amicus brief filed
in the court of appeals. As this Court unanimously
reaffirmed in Chase Bank USA, N.A. v. McCoy, 562
U.S. 195, 209 (2011), these briefs independently
qualify for Auer deference. Whatever dispute exists

18

 among the courts of appeals regarding deference to
an opinion letter from a low-ranking bureaucrat, that
dispute has no bearing on this case.
Moreover, no circuit subscribes to Petitioner’s
broad proposition that agency interpretations must
appear in a format carrying the force of law to
receive Auer deference. Pet. 27. Petitioner derives
such a requirement from Judge Posner’s 13-year-old
dicta in Keys v. Barnhart, 347 F.3d 990 (7th Cir.
2003). Auer, however, contains no such requirement,
and the dicta cited by Petitioner reflects Judge
Posner’s prediction at the time that “[p]robably there
is little left of Auer.” Id. at 993. The past 13 years
have proven that prediction wrong. Compare id.
(“Briefs certainly don’t have ‘the force of law.’”), with
Chase Bank, 562 U.S. at 209 (reaffirming that Auer
applies to statements in amicus briefs).
If there is any split regarding the narrow issue
of deference to informal opinion letters, the evidence
of such disagreement is stale and inconclusive:


The First Circuit decision cited by
Petitioner concerned informal statements
at a seminar, not an agency opinion
letter. See United States v. Lachman, 387
F.3d 42, 54 (1st Cir. 2004).



The other Seventh Circuit authority cited
by Petitioner is a 15-year-old decision
that applied Skidmore to an opinion letter
without mentioning Auer at all, U.S.
Freightways Corp. v. Commissioner, 270
F.3d 1137 (7th Cir. 2001).

19

 

The Eleventh Circuit has without
explanation applied Skidmore deference
to such letters, see Arriaga v. Fla. Pac.
Farms, L.L.C., 305 F.3d 1228, 1238 (11th
Cir. 2002), but it has also without
explanation applied Auer, see Falken v.
Glynn Cty., Ga., 197 F.3d 1341, 1350
(11th Cir. 1999).

Even if the decision below had deferred only to
an unpublished agency opinion, this haphazard
collection of stale cases hardly constitutes a split
ready for this Court’s review.
Second, Petitioner also alleges the circuits are
split regarding deference to agency positions
announced during litigation. Pet. 29-31. Once again,
even if a split existed, it would not be implicated by
this case because the Department’s interpretation of
§ 106.33 dates back to 2013, before this litigation
arose. C.A. App. 55.
If Petitioner’s first purported split was
questionable, the second one is nonexistent. In
support of a split, Petitioner relies on decisions in
which the government itself was a party defending
its own actions. Vietnam Veterans of Am. v. CIA, 811
F.3d 1068 (9th Cir. 2015); Mass. Mutual Life Ins. Co.
v. United States, 782 F.3d 1354 (Fed. Cir. 2015).
Every circuit, including the Fourth Circuit, agrees
that Auer deference is inappropriate when an
interpretation is “a convenient litigating position.”
Pet. App. 17a. That principle, however, applies to
post hoc rationalizations “advanced by an agency
seeking to defend past agency action against attack.”
Auer, 519 U.S. at 462.

20

 When an agency is not itself a party, the fact
that its interpretation is announced for the first time
in an amicus brief does not “make it unworthy of
deference.” Id. The Department of Education is not
a party to this case, and the fact that the agency
issued an opinion letter (which was consistent with
prior agency guidance) in the context of this dispute
is neither unusual nor inappropriate.
III.

THIS CASE IS A POOR VEHICLE FOR
RESOLVING TITLE IX’S APPLICATION
TO TRANSGENDER STUDENTS’ USE OF
RESTROOMS.

Petitioner’s third question presented asks this
Court to decide the underlying question of whether
Title IX and its implementing regulations allow
schools to exclude transgender boys and girls from
using restrooms consistent with their gender
identity, effectively excluding them from the common
restrooms entirely. That question may ultimately
warrant this Court’s attention, but this is the wrong
case at the wrong time. Consistent with its usual
practices, the Court should allow the issue to
continue percolating in the lower courts until a more
appropriate vehicle arrives.
A.

No Other Court of Appeals Has
Considered the Question Presented.

The decision below is the first and only circuit
court opinion to consider how Title IX applies to
transgender students’ use of restrooms. There are
other cases in the pipeline that will soon give other
circuits a chance to consider the issue and give the
Fourth Circuit opportunities to further refine its

21

 analysis.12 As other courts of appeals consider these
cases, they will produce a consensus or a circuit split.
In either event, the issue would benefit from further
exploration in the lower courts.
This Court’s usual practice is to wait until a
circuit split emerges before granting review to
resolve important legal questions. See Sup. Ct. R.
10(a). Before this Court resolves a new legal question
“[i]t often will be preferable to allow several courts to
pass on a given . . . claim in order to gain the benefit
of adjudication by different courts in different factual
contexts.” Califano v. Yamasaki, 442 U.S. 682, 702
(1979). “[W]hen frontier legal problems are
presented, periods of ‘percolation’ in, and diverse
opinions from, state and federal appellate courts may
yield a better informed and more enduring final
pronouncement by this Court.” Arizona v. Evans, 514
U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting).
There is no reason for this Court to grant
certiorari now, without “the benefit it receives from
permitting several courts of appeals to explore a
difficult question.” United States v. Mendoza, 464
U.S. 154, 160 (1984). Petitioner argues that certiorari
See Carcaño v. McCrory, No. 1:16CV236, 2016 WL 4508192
(M.D.N.C. Aug. 26, 2016); Texas v. United States, No. 7:16-CV00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016); Bd. of
Educ. of the Highland Local Sch. Dist. v. United States Dep’t of
Educ., No. 2:16-CV-524, 2016 WL 4269080 (S.D. Ohio Aug. 15,
2016); Students & Parents for Privacy v. United States Dep’t of
Educ., No. 16 C 4945, 2016 WL 3269001 (N.D. Ill. June 15,
2016); Whitaker v. Kenosha Unified Sch. Dist., 2:16-cv-00943
(E.D. Wis. filed July 19, 2016); M.A.B. ex rel. L.A.B. & L.F.B. v.
Bd. Of Educ., 1:16-cv-02622-GLR (D. Md. filed July 19, 2016);
Nebraska v. United States, 4:16-cv-03117-JMG-CRZ (D. Ne.
filed July 8, 2016).
12

22

 is necessary to resolve the tension created between
the Fourth Circuit’s decision and the nation-wide
injunction issued by the district court in Texas v.
United States, No. 7:16-CV-00054-O, 2016 WL
4426495 (N.D. Tex. Aug. 21, 2016), which also covers
the government’s activities in jurisdictions within the
Fourth Circuit. Pet. 31-32. Courts in the Fourth
Circuit, however, have continued to adhere to their
own circuit precedent without difficulty.
See
Carcaño v. McCrory, No. 1:16CV236, 2016 WL
4508192, at *13 (M.D.N.C. Aug. 26, 2016). To the
extent that the injunction from the Northern District
of Texas interferes with other circuits’ control of
precedent in their geographic jurisdictions, that is a
reason for the injunction to be narrowed or
overturned on appeal as an abuse of the district
court’s discretion. See Califano, 442 U.S. at 702. It is
not a reason to allow a single district court to
“foreclos[e] adjudication by a number of different
courts and judges,” and increase “the pressures on
this Court’s docket.” Id.13
B.

The Petition Seeks Interlocutory
Review Without a Final Judgment.

Petitioners seek a writ of certiorari on an
interlocutory basis from the Fourth Circuit’s denial
of a motion to dismiss and a writ of certiorari before
judgment from the district court’s preliminary
injunction order. This Court, however, usually waits
to review final judgments instead of granting
certiorari in an interlocutory posture. See Mount
Moreover, there are jurisdictional obstacles in the Texas case
that may well result in dismissal without reaching the merits of
the Title IX question. Pet. App. 192-209a.
13

23

 Soledad Mem’l Ass’n v. Trunk, 132 S. Ct. 2535, 2536
(2012) (Alito, J., concurring in denial of petition for
certiorari); DTD Enters., Inc. v. Wells, 130 S. Ct. 7, 8
(2009) (Kennedy, J., joined by Roberts, C.J., and
Sotomayor, J., concurring in denial of petition for
certiorari); Va. Military Inst. v. United States, 508
U.S. 946, 946 (1993) (Scalia, J., concurring in denial
of petition for certiorari). And this Court exercises its
discretion to grant certiorari before judgment even
more sparingly. Such a petition will be granted “only
upon a showing that the case is of such imperative
public importance as to justify deviation from normal
appellate practice and to require immediate
determination in this Court.” Sup. Ct. R. 11; see
Aaron v. Cooper, 357 U.S. 566, 567 (1958).
The Court should follow its normal practice
and wait for final judgment in this case too. The
basic facts of this dispute have not yet been settled.
If the Board had petitioned for certiorari after final
judgment, the Court would know the actual content
and sources of the complaints the Board allegedly
received; the Court would have testimony from
administrators at Gloucester High School who
opposed the Board’s unnecessary and humiliating
policy; the Court would have evidence about the
Board’s actual motivations for passing the new
policy; and the Court would know the full extent of
harm the Board’s policy has inflicted on G. during his
junior year.
Title IX “requires careful consideration of the
social context in which particular behavior occurs
and is experienced by its target.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998). Before granting certiorari, the Court should

24

 ensure it has all the facts necessary to make that
assessment.
C.

This Case Involves Only Restrooms,
Not Locker Rooms.

Although Petitioner and the dissent below
argue that the Department’s interpretation of its own
regulation would infringe upon privacy rights in the
context of locker rooms, see Pet. 14, the facts of this
case concern access to restrooms only. As the Fourth
Circuit explained, “G.G.’s use—or for that matter any
individual’s appropriate use—of a restroom will not
involve the type of intrusion present” in cases
involving nudity. Pet. App. 25a n.10. Even the
dissent acknowledged that “the risks to privacy and
safety are far reduced” in the context of restrooms.
Id. at 53a (Niemeyer, J., dissenting). Cf. Cruzan v.
Special Sch. Dist, No. 1, 294 F.3d 981, 984 (8th Cir.
2002) (rejecting claim that allowing transgender
woman to use women’s restroom created hostile work
environment for non-transgender woman in the
absence of an allegation of “any inappropriate
conduct other than merely being present”).
The proper vehicle for addressing speculation
about locker rooms is an actual case and controversy
involving locker rooms. Without any factual context,
Petitioners ask this Court to adopt the dissent’s
assertion—apparently as a matter of law—that
single-sex locker rooms and dormitories would
“function nonsensically” if transgender students are
not excluded from those spaces. See Pet. 35; Pet.
App. 53a (Niemeyer, J., dissenting). But that is an
empirical claim, not a legal one, which should be
informed by the facts from an actual dispute.

25

 A concrete factual context would dispel many
of the untested assumptions underlying the dissent
below.14 Most transgender students, who may feel
deeply embarrassed about parts of their anatomy
that are different, take great pains to ensure that
anatomy is not exposed. With privacy curtains and
other partitions, school districts across the country
have addressed the privacy needs of all students in
locker rooms in a non-stigmatizing manner based on
the particular needs of the situation. See Carcaño,
2016 WL 4508192. at *15 (summarizing information
from school administrators that public school
changing rooms “today often contain partitions,
dividers, and other mechanisms to protect privacy
similar to bathrooms”); accord ED, Examples of
Policies and Emerging Practices at 7-8. There are
many ways to address privacy concerns on an
individualized basis without a “blanket ban.”
Carcaño, 2016 WL 4508192, at *15.15
When the government facially classifies
students on the basis of sex, it is especially important
for courts to base decisions on a factual record to
ensure those classifications are evaluated “through
reasoned analysis rather than through the
For example, despite the dissent’s repeated reference to
showers, there are no functional showers in the Gloucester High
School building. See Pl.’s C.A. Br. 41 n.13.
14

Guidelines from the Virginia Department of Education
already require “private showers with enclosed dressing rooms”
at public schools. Va. Dep’t of Educ. Guidelines for Sch.
Facilities in Va. Pub. Schs. 20 (2013), http://www.doe.
virginia.gov/support/facility_construction/school_construction/re
gs_guidelines/guidelines.pdf.
15

26

 mechanical application of traditional, often
inaccurate, assumptions.” Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 726 (1982). This is not the first
time this Court has been asked to make sweeping
conclusions about lesbian, gay, bisexual, and
transgender people based on bare assertions about
what is “inherent in human nature” or “universally
accepted” “across societies and history.” Pet. App.
42a, 50a (Niemeyer, J., dissenting). Thirty years
ago, the majority and concurring opinions in Bowers
v. Hardwick, 478 U.S. 186 (1986), rested on similarly
sweeping statements that, upon closer examination,
proved to be “more complex” or “at the very least . . .
overstated.” Lawrence v. Texas, 539 U.S. 557, 571
(2003). Faced with similar assertions about
transgender individuals, this Court should wait for
an actual case involving locker rooms to test those
assertions appropriately.16
D.

This Case Is Not a Vehicle for
Evaluating the Detailed Guidance
Issued by the Department of
Education.

The only question before the Court is whether
the Board’s categorical rule excluding transgender
students from using restrooms consistent with their
gender identity is authorized by Title IX and 34
C.F.R. § 106.33. This petition does not provide a
vehicle to decide whether the detailed guidance
issued by the Department of Education after the
As the panel majority noted, the dissent’s assertion about
what “sexual responses” are “inherent in human nature”
conspicuously ignores the existence of lesbian, gay, and bisexual
students. Pet. App. 26a-27a n.11.
16

27

 Fourth Circuit’s decision is entitled to deference or
should have been issued through notice-andcomment rulemaking. Cf. Texas, 2016 WL 4426495,
at *11-*13.
Similarly, this case is not a vehicle for
addressing Petitioner’s criticisms about various
aspects of the guidance. Pet. 14-15. The only question
is whether Title IX permits school boards to enact
categorical rules prohibiting administrators from
allowing any transgender student to use facilities
consistent with their gender identity regardless of
the facts of any particular situation.
E.

This Case Is Not a Vehicle for
Addressing Pennhurst Challenges.

Petitioner asserts that deference to ED’s
interpretation would deprive the Board of the “clear
notice” required by Pennhurst State School &
Hospital v. Halderman, 451 U.S. 1 (1981). Pet. 3637. The Board has already waived that argument,
however, by failing to raise it at any stage of this
case. See Pl.’s C.A. Reply Br. at 14 n.9 (noting
waiver).
Moreover, even if notice were inadequate, the
lack of notice would have no bearing on G.’s requests
for injunctive relief. Pennhurst does not affect “the
scope of the behavior Title IX proscribes,” but merely
the availability of “money damages.” Davis ex rel.
LaShonda D., v. Monroe Cty. Bd. of Educ., 526 U.S.
629, 639 (1999); Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 287 (1998).
On the merits, Petitioner’s Pennhurst
argument is also foreclosed by Davis and Jackson
v. Birmingham Bd. of Educ., 544 U.S. 167, 175

28

 (2005), which held that Title IX puts recipients on
notice of liability for all forms of intentional
discrimination for purposes of Pennhurst. Congress
and administrative agencies need not “prospectively
resolve every possible ambiguity concerning
particular applications” of the statute and
regulations. Bennett v. Ky. Dep’t of Educ., 470 U.S.
656, 669 (1985). Notice is provided “by the statutory
provisions, regulations, and other guidelines
provided by the Department at t[he] time” the funds
are received. Id. at 670.
IV.

THE JUDGMENT BELOW IS CORRECT.

Finally, certiorari should be denied because
the Board’s policy is not authorized by the regulation
on which it purportedly relies, regardless of whether
the Department’s interpretation of that regulation
receives Auer deference, Skidmore deference, or no
deference at all.
A.

The Interpretation of 34 C.F.R. §
106.33 Adopted Below Is Correct,
With or Without Auer Deference.

Under Title IX, students are “specifically
shielded from being ‘excluded from participation in’
or ‘denied the benefits of’ any ‘education program or
activity receiving [f]ederal financial assistance.’”
Davis, 526 U.S. at 650 (quoting 20 U.S.C. § 1681(a)).
“The most obvious example” of a Title IX violation is
“the overt, physical deprivation of access to school
resources.” Id. The question in this case is whether
there is an exception to this general principle that
allows schools to deprive transgender students of
access to school resources by prohibiting them from
using the common restrooms used by other students.

29

 Instead of adopting such an interpretation, the
Department properly concluded that when a school
provides separate restrooms for boys and girls, it
must allow all boys and girls—including boys and
girls who are transgender—to use those restrooms.
And the only way transgender students can do so is if
they are allowed to use restrooms consistent with
their gender identity.
The term “sex” in 34 C.F.R. § 106.33, as in the
underlying statute, encompasses all physiological,
anatomical, and behavioral aspects of sex. That
interpretation is consistent
with dictionary
definitions, see Pet. App. 20-23a, it is consistent with
Price Waterhouse v. Hopkins, 490 U.S. 228, 242
(1989), see Pet. App. 78-79a (Davis, J., concurring),
and it is consistent with this Court’s repeated
instructions to construe Title IX broadly to
encompass “a wide range of intentional unequal
treatment,” Jackson, 544 U.S. at 175.17
In the context of a transgender student,
however, it is impossible to assign a restroom that
corresponds with all those components of sex. As
Judge Niemeyer conceded:
If the term ‘sex’ as used in the statute
and regulations refers to both [sex
This Court’s own contemporaneous decisions from the early
1970s refute Petitioner’s anachronistic assertion that Title IX
and its implementing regulations reflect a terminological
distinction between “sex” and “gender.” This Court’s equal
protection cases exclusively referred to “sex” discrimination
until Kahn v. Shevin, 416 U.S. 351 (1974), when the petitioner’s
brief and the Court’s opinion first used “gender” as a synonym.
See also Catherine Crocker, Ginsburg Explains Origins of Sex,
Gender, Associated Press (Nov. 21, 1993).
17

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 assigned at birth] and gender identity,
then, while the School Board’s policy is
in compliance with respect to most
students, whose [sex assigned at birth]
aligns with their gender identity, for
students whose [sex assigned at birth]
and gender identity do not align, no
restroom or locker room separation
could ever . . . satisfy the conjunctive
criteria.
Pet. App. 56-57a (Niemeyer, J., dissenting)
(emphasis omitted). From that simple fact, Judge
Niemeyer concluded that the regulation must allow
schools to assign students to restrooms based on
their sex assigned at birth instead of their gender
identity. Id. But that is a policy argument, not an
inexorable command from the regulation’s plain text.
When the regulation was drafted, few would
have conceived that students like G. would have been
assigned a female sex at birth and yet, as a result
of hormone therapy, have facial hair and other
male secondary sex characteristics, have a male
designation on his government ID card, and live all
aspects of life in accordance with his male gender
identity. An interpretation of the regulation allowing
G. to use the boys’ restroom is no more “novel,” Pet.
12, than an interpretation placing him in the girls’
restroom. What is “novel” is the existence of
transgender students who are finally able to live
consistently with their gender identity.
But G. and other transgender students do
exist and they must use the restroom, just like any
other human being. The regulation does not
authorize schools simply to banish transgender

31

 students from the boys’ and girls’ restrooms entirely.
When a school has separate restrooms for boys and
girls, all boys and girls, including those who are
transgender, must be able to use those restrooms.
Absent a regulation specifically addressing which
restroom a transgender student should use, the
interpretation that actually enables transgender
students to use the common restrooms is one that
allows transgender students to use restrooms
consistent with their gender identity.
Instead of asking which interpretation of 34
C.F.R. § 106.33 provides an equal education to
transgender students, Petitioner and the dissent
below argue that excluding transgender students
from restrooms consistent with their gender identity
is the only interpretation of 34 C.F.R. § 106.33 that
adequately protects other students’ privacy. Even if
that were the right question, no one disputes that
separating restrooms on the basis of sex reflects
traditions of modesty between men and women, but,
as the panel explained, “the truth of these
propositions” does not answer the question of which
restroom a transgender boy like G. should use. Pet.
App. 26a.
The Board assumes social customs regarding
privacy are built entirely around a person’s genitals
even in contexts such as restrooms, where there is no
exposure to nudity. Pet. 35; Pet. App. 53a (Niemeyer,
J., dissenting). But that assertion is hardly selfevident. For many people, the presence of a
transgender man (who may look indistinguishable
from a non-transgender man) in the women’s
restroom would be more discomfiting than the
presence of a transgender woman (who may look

32

 indistinguishable from a non-transgender woman).
Pet. App. 24a n.8. Indeed, in G.’s own experience, his
use of the women’s restroom was far more disruptive
than his current use of the men’s restroom has been.
C.A. App. 18.
Schools can and do protect all students’
privacy without excluding transgender students from
the same facilities as everyone else. See ED,
Examples of Policies and Emerging Practices at 7-8.
But at the very least, if Petitioner’s arguments are
driven by concerns about potential exposure to
nudity, then the result must be tailored to that
concern. There is no rational reason to bar all
transgender students from all restrooms regardless
of whether students get undressed in front of one
another. Title IX does not permit school boards to
enact categorical rules prohibiting administrators
from allowing any transgender student to use
facilities consistent with their gender identity
regardless of the facts of any particular situation.
Cf. Carcaño, 2016 WL 4508192, at *15 (issuing
preliminary injunction against “blanket ban that
forecloses any form of accommodation for
transgender students other than separate facilities”).
A categorical rule excluding transgender
students from the common restrooms is an “overt,
physical deprivation of access to school resources”
that violates Title IX and its implementing
regulation, fairly construed. Davis, 526 U.S. at 650.
“The statute makes clear that, whatever else it
prohibits, students must not be denied access to
educational benefits and opportunities on the basis of
gender.” Id. That simple principle is enough to
resolve this case.

33

 B.

The
Department’s
Reasonable
Interpretation
of
its
Own
Regulation Is Worthy of Deference
Under Any Standard.

The Fourth Circuit resolved the appeal on the
narrowest available grounds by properly deferring to
the Department’s reasonable interpretation of 34
C.F.R. § 106.33. In doing so, the Fourth Circuit did
not allow the Department to define the meaning of
sex. It independently interpreted the term “sex” to
include all physiological, anatomical, and behavioral
aspects of a person’s sex, and then deferred to
the Department’s judgment of how to “provide
separate toilet . . . facilities on the basis of sex” when
different aspects of a student’s sex diverge. 34 C.F.R.
§ 106.33. The Department concluded that allowing
transgender students to use restrooms consistent
with their gender identity is the only way to “provide
separate toilet . . . facilities on the basis of sex” in a
manner consistent with the regulation’s premise that
separate restrooms for boys and girls do not deprive
students of equal educational opportunity. Id. The
Fourth Circuit properly deferred to that policy
judgment, but the definition of “sex” remains
unchanged.
Such deference is particularly appropriate in
light of Title IX’s structure and the role of the
Department in administering the statute pursuant to
an express delegation of authority. See 20 U.S.C. §
1682. Title IX prohibits all forms of disparate
treatment on the basis of sex unless specifically
authorized by one of the “narrow exceptions to that
broad prohibition” in the statutory text or
implementing regulations. Jackson, 544 U.S. at 175.

34

 Congress included an exception in the text of Title IX
allowing schools to “maintain[] separate living
facilities for the different sexes.” 20 U.S.C. § 1686.
But the authority to provide separate restrooms—
and other sex-segregated activities—was created
through regulations. 34 C.F.R. § 106.33. Without
the regulatory exception, separate restrooms would
“fall[] within Title IX’s general prohibition against
sex discrimination.” Carcaño, 2016 WL 4508192, at
*13.18
Congress was well aware that the statute
delegated policy questions about restrooms to the
administrative agency. During congressional debate,
Title IX’s sponsor, Senator Bayh, opposed a statutory
exception analogous to the “bona fide occupational
qualification” exception in Title VII “because all too
often this is the hook on which discrimination can be
hung.” 117 Cong. Rec. 30407 (1971). Instead, he
noted that “the rulemaking powers . . . give the
Secretary discretion to take care of this particular
policy problem.” Id.; accord 118 Cong. Rec. 5807
(1972) (Statement of Sen. Bayh) (“[R]egulations
would allow enforcing agencies to permit differential
treatment by sex . . . where personal privacy must be
preserved.”). The decision to permit sex-segregated
restrooms is thus “a creature of the Secretary’s own
regulations.” Gonzales v. Oregon, 546 U.S. 243, 256
(2006). The Department exercised discretion by
The Department has for decades provided interpretative
guidance for its regulations, and that guidance has consistently
received deference in light of Title IX’s broad delegation of
power. See, e.g., Biediger v. Quinnipiac Univ., 691 F.3d 85, 96
(2d Cir. 2012) (discussing longstanding deference to policy
interpretation from 1979).
18

35

 permitting differential treatment in the context of
restrooms in the first place, and it makes sense to
defer to the Department’s determination of what
practices are consistent with that policy decision.
Cf. City of Arlington, Tex. v. FCC, 133 S. Ct. 1863,
1876 (2013) (The question is “whether Congress
would have intended the agency to resolve the
resulting ambiguity. If so, deference is warranted.”).
As the agency charged with enforcing Title IX,
the Department of Education has “a body of
experience and informed judgment,” that would
merit deference even under the less deferential
standard of Skidmore v. Swift & Co., 323 U.S. 134,
139-40 (1944). See Fed. Exp. Corp. v. Holowecki, 552
U.S. 389, 403 (2008). From its nation-wide vantage,
the Department has rested its judgment on the
collective experiences of students, school districts,
and school administrators across the country. See
Department of Education, Examples of Policies and
Emerging Practices. As part of the Executive Branch,
the Department of Education is also politically
accountable for its decisions, and Congress retains
the power to overrule the Department’s policies if it
wishes to do so. Cf. Holowecki, 552 U.S. at 403.
Title IX entrusts the administrative agency
with responsibility for making policy judgments
about when to permit differential treatment on the
basis of sex.
The Department of Education’s
reasonable interpretation of its own regulation falls
squarely within that delegation of authority and is
worthy of deference. If Petitioner disagrees with the
Department’s judgment, its remedy lies with the
political branches, not this Court.

36

 CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully Submitted,
Joshua A. Block
Counsel of Record
James D. Esseks
Leslie Cooper
Louise Melling
Steven R. Shapiro
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
(212) 549-2500
jblock@aclu.org
Gail M. Deady
Rebecca K. Glenberg
(of counsel)
AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA
FOUNDATION, INC.
701 E. Franklin Street,
Suite 1412
Richmond, VA 23219
Date: September 13, 2016

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