The "Loving Analogy" in the New SCOTUS Trans Case

by Michael Dorf

Among the law nerds in whose circles I move, there is a developing view that the public will misunderstand the trans school restroom case of Gloucester County School Board v. G.G, in which the Supreme Court just granted cert. In the law-nerdy view, the public will view the case as fundamentally about trans equality, but in fact it's mostly about administrative law. In this post, I'll explore the possibility that the uninformed public are mostly right and the law nerds are mostly wrong. If so, then the administrative deference issue is secondary: the core question is whether anti-trans discrimination is sex discrimination.

I'll start with as brief a recap as possible. G.G. is a transgender boy who was denied access to the boys' restroom in his high school. The school board eventually offered three single-user restrooms, but G.G. was unhappy with that accommodation, regarding it as stigmatizing. G.G. sued under the Equal Protection Clause and Title IX. The equal protection claim has not yet been adjudicated, but the district court initially denied a preliminary injunction on the statutory claim. Then the Fourth Circuit reversed.

The two key provisions are:

Title IX: "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."


a Department of Education Reg (codified at 34 C.F.R. § 106.33): "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."

The Fourth Circuit held that the reg was ambiguous with respect to classifications of who counts as what sex. It then turned to recent Department of Education guidance documents that say that Title IX forbids recipients from classifying students in a manner that contradicts their gender identity. The court invoked the doctrine of Auer v. Robbins, under which courts give substantial deference to agency interpretations of ambiguous agency regulations. Granting such deference, the Fourth Circuit found that the district court had erred in rejecting the claim of sex discrimination under Title IX and remanded to the district court, which then granted the injunction. Before the school year started, however, the SCOTUS stayed the injunction, with Justice Breyer providing a "courtesy" fifth vote for the stay. (I discussed the courtesy fifth vote here.) Unsurprisingly in light of the earlier stay, the Court granted cert.

The cert petition posed three questions. The first was whether the Supreme Court should overturn Auer, but the Court denied cert on that question, granting only on the second two: (1) Assuming Auer remains good law, does it apply to an unpublished agency letter adopted in the course of the dispute at issue? (2) With or without deference, is the agency construction correct?

Now let's move on to the possibility I want to explore: Maybe the Fourth Circuit opinion, the cert petition, and even the respondent's brief in opposition all make a fundamental mistake: They accept that the Dep't of Education policy regarding gender identity construes the reg. The Fourth Circuit and the respondent say that in doing so, the agency is entitled to deference; the petitioner and various amici say that it is not entitled to deference; but none of the relevant actors appears to realize that the Dep't of Education was not construing the reg--except in a negative sense.

Here's what I mean by a negative sense. The reg does not forbid anything. It is an authorization for sex-segregated restrooms by recipients of Title IX funds. Thus, the Dep't of Education was construing the reg only in the sense of saying that the reg doesn't authorize classifying schoolchildren contrary to their gender identity. That's not nothing, of course. But it doesn't win the case for G.G., because it doesn't establish that classifying students on the basis of biological sex at birth even when that disagrees with gender identity is sex discrimination in violation of Title IX. To get to that further crucial point, a court must either defer to the agency's construction of Title IX or simply agree that, considered de novo, Title IX's prohibition on sex discrimination forbids classifying students born biologically to one sex as that sex even if their gender identity corresponds to the other sex.

Is there a basis for deference to the Dep't of Education's construction of Title IX? If so, it's not Auer, because Title IX is a statute, not the agency's own reg. What about Chevron deference? Notably, even the respondent does not think that the sort of agency guidance at issue here (which was not promulgated as a reg) is entitled to Chevron deference. Absent Auer deference, the respondent argues that the agency's approach is entitled to so-called Skidmore deference (so-named for a 1944 case). But since United States v. Mead, it has been fairly clear that Skidmore deference is practically de novo review. As Justice Souter characterized the test in Mead, "under Skidmore" an agency determination "is eligible to claim respect according to its persuasiveness."

If "respect according to its persuasiveness" sounds like no deference, there's a reason for that. In Mead, Justice Souter (writing for the Court) explained that Skidmore deference takes account of the specialized knowledge and expertise of the agency in addressing a technical subject. Granting that there are contexts (such as the setting of tariffs, as in Mead itself) in which that is something more deferential to the agency than a de novo judicial assessment, Title IX does not seem to be one of those contexts. Whether forbidding trans students from using the restroom corresponding to their gender identities counts as sex discrimination is a moral, philosophical, and/or linguistic question; but it is hardly a technical one.

Accordingly, I think that the Department of Education probably should not receive any real deference with respect to the crucial question presented in the case. I hasten to add that I also think that G.G. should win even without deference. I'll now briefly explain why.

At first blush, the argument for G.G. that there is a prima facie violation of Title IX looks like a slam dunk. After all, Title IX forbids sex discrimination and the school tells him he can't use a particular restroom because of (what it deems to be) his sex. (Biologically born) boys can use the boys' restroom; G.G. can't because the school regards him as a girl. That's sex discrimination, plain and simple. The only way that the school district can win is by relying on the reg authorizing sex-segregating restrooms, but in doing so it must overcome Auer deference. Right?

Well I think so, but I'm not 100% confident that a majority of the Supreme Court will think so. To see the difficulty, think about same-sex marriage. Why didn't the Court simply say that laws forbidding same-sex marriage were a form of presumptively impermissible sex discrimination? During the oral argument in Obergefell v. Hodges, Chief Justice Roberts himself raised the issue with the following question:
I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
The lawyer for the state gave what I regard as a not-very-persuasive answer about how the Court's sex discrimination cases all "involved treating classes of men and women differently" and how sex distinctions drawn on the basis of biology are not presumptively suspect. Evidently that satisfied Chief Justice Roberts, however, because he dissented from the Court's recognition of a right to SSM without even addressing, much less rejecting the sex discrimination argument. Notably, the majority in Obergefell didn't address the sex discrimination argument either, even as it discussed equal protection principles. And prior to Obergefell, even some judges who ultimately concluded that there is a right to SSM rejected the idea that laws banning SSM are sex discrimination.

Put differently, in the SSM context, in order to get the Court to take seriously the obvious existence of sex discrimination, advocates for the right to SSM first had to persuade the Court that there really was sex discrimination going on. In the SSM litigation, the typical move was by analogy to Loving v. Virginia.

Based on the cert petition in the new trans restroom case, it could be said that the school district has waived any objection to the prima facie determination that there is sex discrimination under Title IX itself, relying entirely on the reg. However, the Court has been known to expand beyond the scope of the cert questions, and thus it is possible that in considering the case, one or more justices might question whether there is even a prima facie violation. If so, the Loving analogy would be the obvious response. 

Suppose two high school boys: G.G., a trans boy, and F.F., a cisgender male. Under the school district policy, F.F. but not G.G. is entitled to use the restroom that corresponds with his gender identity. What's the difference between F.F. and G.G.? Why, biological sex at birth. Thus, the policy literally draws distinctions on the basis of sex in violation of Title IX. QED.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

The school district still might argue that it is not distinguishing based on sex. After all, whether a student was born a biological boy or born a biological girl, that student is not entitled to use the restroom for students of the opposite sex. Following the logic of the state's lawyer in response to CJ Roberts during the Obergefell argument, the claim would be that there is no adverse treatment of either boys or girls as a class. This rejoinder is closely analogous to the losing argument in Loving. The Court rejected the argument in Loving, but its failure to consider it in Obergefell leaves its status outside of the race context unclear.

To my mind, the best (but still not very good) argument against the Loving analogy in the SSM context asserts that it is merely a formal analogy: Yes, a man told he can't marry another man is formally suffering discrimination based on sex, because a woman could marry a man, but (this objection to the Loving analogy goes) the state is really discriminating based on sexual orientation, not sex.

So too here, one can imagine the school district and others pushing back against the Loving analogy by saying that there's no real sex discrimination, only formal sex discrimination conjured up through clever lawyering to disguise what is at worst a failure to accommodate a trans student in the way he prefers.

I didn't like that response to the Loving analogy in the gay rights context and I don't like it any better in the trans rights context. The reason is that the analogy isn't just formal; in both contexts it's substantive too. Laws that discriminate on the basis of sexual orientation or on the basis of trans status instantiate the fundamental problem with sex discrimination: sex-role stereotyping. Anti-SSM and other anti-gay laws stereotype based on sex with respect to the object of sexual attraction. Anti-trans laws stereotype based on sex-stereotyped assumptions about gender identity. So it won't do to say that these laws aren't really discriminating on the basis of sex but on the basis of sexual orientation or trans status, because discrimination on the basis of sexual orientation and trans status are both formally and substantively forms of sex discrimination.

If the Court were to accept that the school district's policy is prima facie sex discrimination for the sort of reason I've just outlined, then the district might try to invoke the reg to say that sex-segregated restrooms are nonetheless permitted. It's only at that point, if at all, that Auer deference would kick in to benefit G.G.: De novo interpretation of Title IX yields the conclusion that the district is in violation, and the agency is acting reasonably in construing the reg so as not to authorize barring a trans boy from the boys' restroom. But the Auer deference question only arises once the Court has already determined either de novo or under Skidmore (which in this context is de facto de novo review) that there is a prima facie violation of Title IX.

As I said, I think this should be a winning case for G.G. He should win under Title IX without any deference, and then the school district should not have permission for its policy under the reg because of Auer deference. However, I'm not confident that a majority of the Supreme Court will go along with the first step in this argument because of the uncertain status of the Loving analogy. Much will depend on whether there is a ninth justice and, if so, who that ninth justice is.


Postscript 1: In the foregoing, I have not attempted to answer the question whether, assuming there is sex discrimination here, the school district's interests in modesty, privacy, and security might nonetheless justify the discrimination. I've covered enough for one post.

Postscript 2: Above I use the categories of sex and gender identity as binary, but some people identify as gender non-binary. In using binary language above, I meant only to capture the issues of the current case. I did not mean to exclude other possibilities for gender non-binary students.