At the Washington Post, law professor Eugene Volokh discusses last week’s appeals court ruling in G.G. v. Gloucester County School Board that “schools must let biologically female students who identify as male use men’s restrooms.” The 2-to-1 ruling by the Fourth Circuit Court of Appeals
didn’t hold that this is required by the Constitution, but rather deferred to the Education Department’s interpretation of the department’s regulation on the subject. (The regulation, which interprets the federal Title IX provisions, and which generally forbids sex discrimination but allows sex-segregated restrooms, applies to any schools that get federal funds.) The court also held that the high school’s proposed accommodation of G.G., which would have allowed G.G. (as well as other students) to use three single-stall unisex restrooms that it created, was inadequate, because it still barred G.G. from using the ordinary multi-stall boys’ restrooms.
G.G. is biologically female, and has not had gender reassignment surgery, but identifies as male; G.G. would thus be able to use the boys’ high school restroom.
Thus, the court upheld the Education Department’s 2015 opinion letter redefining “sex” to include not just one’s biological sex, or sex after gender reassignment surgery, but also your self-identification as being a member of the sex opposite your physical characteristics. In a well-written dissent, Judge Paul Niemeyer argued that this new definition of “sex” is internally inconsistent, “illogical and unworkable,” and will lead to constitutional privacy violations in future scenarios involving locker rooms.
As Professor Volokh notes, the judges in the majority “didn’t squarely consider the argument that this would undermine the constitutional privacy rights of other students; some courts have said that there is a constitutional right not to be seen when undressed by members of the opposite sex.” Failing to consider the issue may well have been a mistake: Under the canon of constitutional doubts, a court is not supposed to defer to an agency’s interpretation of the law if it would raise even potential constitutional problems. See Miller v. Johnson, 515 U.S. 900, 923 (1995) (rejecting interpretation by Justice Department’s Civil Rights Division based on potential constitutional violation that would have resulted); NAMUDNO v. Holder, 129 S. Ct. 2504, 2513 (2009)(same).
This ruling was wrong to allow bureaucrats to summarily redefine what sex means, since that is the most foundational term in the statute, and thus is not a mere detail whose meaning Congress would have delegated to bureaucrats, especially to change without notice and comment. By redefining “sex” for purposes of the bathroom regulation, they effectively redefined it throughout the statute, since the term sex has to have the same meaning throughout Title IX, under basic canons of statutory construction, as Judge Niemeyer noted in dissent, and as the majority essentially conceded.
The court deferred to an Education Department 2015 opinion letter reinterpreting what “sex” meant in its bathroom regulation. (Sex had historically meant one’s biological sex, and the framers of Title IX doubtless interpreted it that way). That letter (issued by the Office for Civil Rights, where I used to work) never went through notice and comment. As a result, the Education Department never had to think through and address some of the practical problems identified by school districts and state officials in their briefs with the court (such as the potential pitfalls of relying on a student’s self-definition, rather than objectively-verifiable gender characteristics, such as biology, or sex-change surgery), which it would have had to address if it had allowed school districts to comment on the requirements contained in the letter.
The court purported to rely on Auer deference, which allows an agency to avoid notice and comment when it is providing guidance about the meaning of its own regulation, rather than a statute passed by Congress. (It is axiomatic that when an agency interprets a statute — as opposed to a regulation — courts will only give the interpretation controlling weight if it goes through notice and comment. But this requirement does not necessary apply, when an agency is interpreting its own regulation, rather than the statute).
But the word “sex” appears not just in the bathroom regulation, but the statute itself. Thus, by redefining the word “sex,” the Education Department was not simply reinterpreting its own regulation, but redefining the statute. But that could legally be done, if at all, only after notice and comment — which never occurred. The court was wrong to allow that.
Effectively, the court applied not Auer deference, but Auer deference squared, going well beyond the degree of deference allowed by the Supreme Court’s Auer and Seminole Rock decisions.
And redefining what sex means may simply be beyond the authority of the Education Department to begin with, even with notice and comment. It’s analogous to the Supreme Court refusing to defer to the Obama administration about whether health care tax credits were available in most states under the Affordable Care Act, which it refused to do for an issue of that magnitude, instead deciding the issue on its own. See King v. Burwell, 135 S.Ct. 2480, 2489 (2015). Congress does not “hide elephants in mouseholes,” Whitman v. American Trucking Ass’n, 531 U.S. 457, 468 (2001), or delegate to agencies certain bedrock statutory questions. See King v. Burwell, 135 S.Ct. 2480, 2489 (2015).
Note: This commentary reflects solely the opinion of its author, not any institution or publication.