Supreme Court Will Hear Transgender Bathroom Case

Crystal Cooper/ACLU of Virgina/Handout via REUTERS

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court will decide whether a federal order requiring public schools to allow transgender students to use the bathroom corresponding to their gender identity is lawful.

The Obama administration issued a directive earlier this year requiring public schools to accommodate transgender students. The directive advised that the U.S. Department of Education read Title IX, the section of the federal code concerning gender discrimination in education, to include transgender individuals, meaning a school may not discriminate against them in any way.

A number of school districts across the country have ignored the order and set their own policies, arguing the administration does not have the authority to issue such a rule. A number of states, led by Texas, challenged the order in federal court — a federal district judge in Texas sided with them and blocked the order.

The case was occasioned when Gavin Grimm, a 17-year-old student in the Gloucester County Public Schools who is transgender, sought to begin using the men’s bathroom. Grimm was born female but identifies as male. Gloucester Country schools require transgender students to use alternative bathrooms.

Grimm claims the district’s policy violates Title IX and the Constitution’s equal protection clause. Though a district court sided with the schools, the U.S. Court of Appeals for the Fourth Circuit ruled for Grimm, finding that the courts must defer to U.S. Department of Education guidelines which require schools to treat students consistent to their gender identity in order to comply with Title IX. (RELATED: Federal Court Forces School To Let Transgender Teen Into Boy’s Bathroom)

The Supreme Court agreed to hear the case on Friday, granting review on two questions. The justices must determine whether an unpublished agency letter which itself does not carry the force of law is subject to Auer deference, and whether the Department’s interpretation of Title IX will stand. Auer deference is a legal doctrine requiring the courts to defer to an agency’s interpretation of its own regulation. The Court was also asked to revisit the 1997 Auer ruling in its entirety, but declined to take up that question.

A date for oral arguments has not yet been set. In the absence of a ninth justice, the Court has declined to schedule arguments in major cases on which they are expected to split along ideological lines. Therefore, it’s possible the case will not be argued for the foreseeable future.

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