Could the Transgender Bathroom Fight Upend Decades of Admin Law?

Article Placeholder Image
By Casey C. Sullivan, Esq. on August 23, 2016 3:57 PM

The battle over where transgender youth can go to the bathroom has quickly turned into a political and legal flashpoint. The Supreme Court delved into the fight recently, staying an order that would allow transgender Virginia high schooler Gavin Grimm to use the bathroom that matched his gender identity. Then, on Sunday, a federal judge in Texas blocked the Obama administration's guidance on transgender students and bathroom access.

But these fights aren't just about the rights of transgender youth and debates about who can pee where. (Though they're certainly about that.) They're also a battle to change administrative law and the deference courts give to government agencies.

Auer Administrative Law History

Legally speaking, one of the central issues in the disputes over both Gavin Grimm's bathroom access and the Obama administration's school guidance is application of Auer deference. In 1997's Auer v. Robbins, the Supreme Court ruled that courts should defer to an agency's reasonable interpretation of an ambiguous statute it administers.

In Grimm's fight with the Gloucester County School Board, the Fourth Circuit ruled that the Department of Education's interpretation that "sex" in Title IX encompassed gender identity was entitled to Auer deference. The district court in Texas refused to grant that interpretation Auer deference.

The Department of Justice, Department of Labor, and EEOC have all come to similar conclusions as the DOE regarding "sex" in civil rights laws, but those interpretations are a relatively recent development. Decades earlier, most agencies and courts had rejected the idea that "sex" in such statutes encompassed gender identity and transgender individuals.

If Auer deference applies to those new interpretations, they are likely to withstand judicial scrutiny. If it does not, or if Auer is rejected altogether, those interpretations are on much shakier ground.

Auer You With Me or Auer You Against Me?

Auer was part of a trend that sought to limit court interference with executive business, to keep courts from imposing their judgement over that of government agencies'. It's a trend that saw its first, and perhaps most important, Supreme Court victory in 1984's Chevron v. NRDC, which gave birth to Chevron deference and led directly to Auer.

And it was a trend largely pushed by conservatives, who wanted to limit a liberal judiciary's impact on the executive branch. But lately that deference has been facing a backlash. As Linda Greenhouse notes in the New York Times, jurists such as Antonin Scalia, once champions of Chevron, have begun pulling back from agency deference in recent years. Some have speculated that the Auer era, if not Chevron itself, might be coming to an end.

The case between Grimm and the Gloucester County School Board could inaugurate that undoing, should the Court take the opportunity to reject Auer deference. In arguing that its appeal case was likely to be granted cert, the school board noted that "in this case this Court can easily reach and decide whether Auer remains good law and, if so, how it applies in cases such as this."

If the Court does not reject Auer, and such rejection is unlikely given its current make up, it may still impact how Auer is applied. Circuit courts are currently split on the circumstances in which Auer deference can be granted. A Supreme Court ruling on the issue could broaden or narrow the scope of that deference, depending on the outcome.

The Supreme Court is bound to hear one of the cases regarding transgender bathroom access sooner or later. How it rules could not just impact civil rights for years to come, it could reshape how court's treat federal agencies as well. That could have an impact well beyond the debate over transgender rights.

Related Resources: