New York Law School

Art Leonard Observations

Posts Tagged ‘Gavin Grimm’

Supreme Court Will Not Decide Transgender Title IX Case This Term

Posted on: March 7th, 2017 by Art Leonard No Comments

The Supreme Court will not decide this term whether Title IX of the Education Amendments of 1972 and an Education Department regulation, 34 C.F.R. Section 106.33, require schools that receive federal money to allow transgender students to use restrooms consistent with their gender identity. Gloucester County School Board v. G.G., No. 16-273 (Summary Disposition, March 6, 2017).  Title IX states that schools may not discriminate because of sex if they get federal money, and the regulation allows schools to provide separate restroom and locker room facilities for boys and girls so long as they are “equal.”

Responding to a February 22 letter from the Trump Administration, advising the Court that the Education and Justice Departments had “withdrawn” two federal agency letters issued during the Obama Administration interpreting the statute and regulation to require allowing transgender students to use facilities consistent with their gender identity, the Court announced on March 6 that it was “vacating” the decision by the 4th Circuit Court of Appeals in the case of transgender high school student Gavin Grimm, which it had previously agreed to review, and sending the case back to the 4th Circuit for “further consideration in light of the guidance document issued by the Department of Education and Department of Justice.”  The case had been scheduled for argument on March 28.

This result was not unexpected, although both parties in the case, Grimm and the Gloucester County, Virginia, School District, had asked the Court to keep the case on the docket and decide whether Title IX and the bathroom regulation required the district to let Grimm use boys’ restrooms at the high school. Represented by the ACLU LGBT Rights Project, Grimm urged the Court to hold the previously scheduled hearing.  The school district urged the Court to delay the hearing, in order to give the Trump Administration an opportunity to weigh in formally, but then to hear and decide the case.  Had the Court granted the school district’s request, the case might have been argued before the end of the Court’s current term or delayed to next fall.

The case dates back to 2015, when Grimm and his mother had met with school administrators during the summer prior to his sophomore year to tell them about his gender transition and they had agreed to let him use the boys’ restrooms, which he did for several weeks with no problems. Complaints by parents led the school board to adopt a resolution requiring students to use restrooms consistent with the sex indicated on their birth certificates – so-called “biological sex” – regardless of their gender identity.  The school also provided an alternative, unacceptable to Grimm, of using a single-user restroom that he found inconvenient and stigmatizing.

Grimm sued the school district, alleging a violation of his rights under Title IX and the 14th Amendment. The Education Department sent a letter at the request of the ACLU informing the district court that the Department interpreted Title IX and the bathroom regulation as “generally” requiring schools to let transgender students use facilities consistent with their gender identity.  Following the lead of several federal courts and the Equal Employment Opportunity Commission interpreting other federal statutes that forbid sex discrimination, the Obama Administration took the position that laws against sex discrimination protect people from discrimination because of their gender identity.

The district judge, Robert Doumar, rejected the Obama Administration’s interpretation and granted the school district’s motion to dismiss the Title IX claim on September 17, 2015 (132 F. Supp. 3d 736), while reserving judgment on Grimm’s alternative claim that the policy violated his right to equal protection of the law guaranteed by the 14th Amendment.  Doumar opined that when adopting Title IX in 1972, Congress had not intended to forbid gender identity discrimination, notwithstanding the Obama Administration’s more recent interpretation of the statute.

The ACLU appealed Doumar’s ruling to the Richmond-based 4th Circuit, where a three-judge panel voted 2-1 on April 19, 2016 (822 F.3d 709), to reverse Judge Doumar’s decision.  The panel, applying a Supreme Court precedent called the Auer Doctrine, held that the district court should have deferred to the Obama Administration’s interpretation of the bathroom regulation because the regulation was ambiguous as to how transgender students should be accommodated and the court considered the Obama Administration’s interpretation to be “reasonable.”  A dissenting judge agreed with Judge Doumar that Title IX did not forbid the school district’s policy. The panel voted 2-1 to deny the school district’s motion for rehearing by the full 4th Circuit bench on May 31 (824 F.3d 450).

Shortly after the 4th Circuit issued its decision, the Education and Justice Departments sent a “Dear Colleague” letter to school administrators nationwide, advising them that the government would interpret Title IX to protect transgender students and providing detailed guidance on compliance with that requirement.  The letter informed recipients that failure to comply might subject them to Education Department investigations and possible loss of eligibility for federal funding.  This letter stirred up a storm of protest led by state officials in Texas, who filed a lawsuit joined by ten other states challenging the Obama Administration’s interpretation as inappropriate.  Subsequently another lawsuit was filed in Nebraska by state officials joined by several other states making the same argument.

Judge Doumar reacted quickly to the 4th Circuit’s reversal of his ruling, issuing a preliminary injunction on June 23 requiring the school district to allow Grimm to use boys’ restrooms while the case proceeded on the merits (2016 WL 3581852).  The 4th Circuit panel voted on July 12 to deny the school district’s motion to stay the preliminary injunction, but on August 3 the Supreme Court granted an emergency motion by the school district to stay the injunction while the district petitioned the Supreme Court to review the 4th Circuit’s decision (136 S. Ct. 2442).

It takes five votes on the Supreme Court to grant a stay of a lower court ruling pending appeal. Usually the Court issues no written opinion explaining why it is granting a stay.  In this case, however, Justice Stephen Breyer issued a one-paragraph statement explaining that he had voted for the stay as a “courtesy,” citing an earlier case in which the conservative justices (then numbering five) had refused to extend such a “courtesy” and grant a stay of execution to a death row inmate in a case presenting a serious 8th Amendment challenge to his death sentence.  Justices Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan indicated that they would have denied the motion, so all four of the conservative justices had voted for the stay.  Since it takes five votes to grant a stay but only four votes to grant a petition for certiorari (a request to the Court to review a lower court decision), it was clear to all the justices that the school district’s subsequent petition for review would be granted, and it was, in part, on October 28 (137 S. Ct. 369).

Meanwhile, however, U.S. District Judge Reed O’Connor in Wichita Falls, Texas, had granted a “nationwide” preliminary injunction later in August in the Texas case challenging the Obama Administration guidance, blocking federal agencies from undertaking any new investigations or initiating any new cases involving gender identity discrimination claims under Title IX. Texas v. United States, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016).  The Obama Administration filed an appeal with the Houston-based 5th Circuit Court of Appeals, asking that court to cut down the scope of O’Connor’s injunction to cover just the states that had joined that lawsuit, pending litigation on the merits in that case.

The Gloucester school district’s petition for certiorari asked the Supreme Court to consider three questions: whether its doctrine of deferral to agency interpretations of regulations should be abandoned; whether, assuming the doctrine was retained, it should be applied in the case of an “unpublished” letter submitted by the agency in response to a particular lawsuit, and finally whether the Obama Administration’s interpretation of Title IX and the regulation were correct.  The Court agreed only to address the second and third questions.

Donald Trump was elected a week later. During the election campaign, he stated that he would be revoking Obama Administration executive orders and administrative actions, so the election quickly led to speculation that the Gloucester County case would be affected by the new administration’s actions, since the Guidance had been subjected to strong criticism by Republicans.  This seemed certain after Trump announced that he would nominate Senator Jeff Sessions of Alabama to be Attorney General, as Sessions has a long history of opposition to LGBT rights.  The announcement that Trump would nominate Betsy DeVos to be Secretary of Education fueled the speculation further, since her family was notorious for giving substantial financial support to anti-LGBT organizations.  It seemed unlikely that the Obama Administration’s Title IX Guidance would survive very long in a Trump Administration.

The other shoe dropped on February 22, just days before the deadline for submission of amicus curiae (“friend of the court”) briefs on behalf of Gavin Grimm.   The Solicitor General’s office had not filed a brief in support of the school district at the earlier deadline, and there had been hope that the government would file a brief on behalf of Grimm or just stay out of the case.  According to numerous press reports, Secretary DeVos, who reportedly does not share her family’s anti-gay sentiments, had not wanted to withdraw the Guidance, but Attorney General Sessions insisted that the Obama Administration letters should be withdrawn, and Trump sided with Sessions in a White House showdown over the issue.

The February 22 “Dear Colleagues” letter was curiously contradictory, however. While announcing that the prior letters were “withdrawn” and their interpretation would not be followed by the government, the letter did not take a position directly on whether Title IX applied to gender identity discrimination claims.  Instead, it said that further study was needed on the Title IX issue, while asserting that the question of bathroom access should be left to states and local school boards and that schools were still obligated by Title IX not to discriminate against any students, regardless of their sexual orientation or gender identity.  The letter was seemingly an attempt to compromise between DeVos’s position against bullying and discrimination and Sessions’ opposition to a broad reading of Title IX to encompass gender identity discrimination claims.  White House Press Secretary Sean Spicer said that the question of Title IX’s interpretation was still being considered by the administration.

In any event, the Obama Administration interpretation to which the 4th Circuit panel had deferred was clearly no longer operative, effectively rendering moot the first question on which the Supreme Court had granted review.  Although the parties urged the Court to continue with the case and address the second question, it was not surprising that the Court decided not to do so.

The usual role of the Supreme Court is to decide whether to affirm or reverse a ruling on the merits of a case by the lower court. In this case, however, the 4th Circuit had not issued a ruling on the merits as such, since the basis for its ruling was deference to an administrative interpretation.  The 4th Circuit held that the Obama Administration’s interpretation was “reasonable,” but not that it was the only correct interpretation of the regulation or the statute.  The only ruling on the merits in the case so far is Judge Doumar’s original 2015 ruling that Grimm’s complaint failed to state a valid claim under Title IX.  Thus, it was not particularly surprising that the Supreme Court would reject the parties’ request to hear and decide the issue of interpretation of Title IX, and instead to send it back to the 4th Circuit to reconsider in light of the February 22 letter.  The Court usually grants review because there are conflicting rulings in the courts of appeals that need to be resolved. Here there are no such conflicting rulings under Title IX and the bathroom regulation, since the only other decisions on this question are by federal trial courts.

After issuing its February 22 letter, the Justice Department abandoned its appeal of the scope of Judge O’Connor’s preliminary injunction in the Texas case and asked the 5th Circuit to cancel a scheduled argument, which it did.  Furthermore, withdrawal of the Obama Administration Guidance rendered the Texas v. U.S. case moot, since the relief sought by the plaintiffs was a declaration that the Guidance was invalid, so Judge O’Connor will dissolve his injunction and the case will be withdrawn, as will be the Nebraska case.

In the meantime, there are several other relevant cases pending. The Cincinnati-based 6th Circuit and the Philadelphia-based 3rd Circuit will be considering appeals from district court rulings on transgender student rights from Ohio and Pennsylvania, there are cases pending before trial courts elsewhere, and there are multiple lawsuits pending challenging North Carolina’s H.B. 2, which among other things mandates that transgender people in that state use public restrooms consistent with their birth certificates.  One case challenging H.B. 2 was filed by the Obama Justice Department and may be abandoned by the Trump Administration.  But the 4th Circuit is shortly to hear arguments on an appeal filed by three transgender plaintiffs who are students or staff members at the University of North Carolina, who won a preliminary injunction when the trial judge in their case, filed by the ACLU and Lambda Legal, deferred to the Obama Administration Guidance as required by the 4th Circuit’s ruling in Grimm’s case, but declined to rule on the plaintiffs’ claim that H.B. 2 also violated their constitutional rights.  Carcano v. McCrory, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016). The appeal is focused on their constitutional claim and their argument that the preliminary injunction, which was narrowly focused on the three of them, should have been broadly applied to all transgender people affected by H.B. 2.  The case pending in the 3rd Circuit also focuses on the constitutional claim, as a trial judge in Pittsburgh ruled that a western Pennsylvania school district violated the 14th Amendment by adopting a resolution forbidding three transgender high school students from using restrooms consistent with their gender identity. Evancho v. Pine-Richland School District, 2017 U.S. Dist. LEXIS 26767, 2017 WL 770619 (W.D. Pa. Feb. 27, 2017).

Meanwhile, Gavin Grimm is scheduled to graduate at the end of this spring semester, which may moot his case since he was seeking injunctive relief to allow him to use the boys’ restrooms, unless the court is convinced that a live controversy still exists because the school district’s policy continues in effect and will still prevent Grimm from using the boys’ restrooms if he come to the school to attend alumni events.

It seems likely that whatever happens next in the Gavin Grimm case, the issue of transgender people and their access to gender-identity-consistent public facilities will continue to be litigated in many federal courts in the months ahead, and may be back to the Supreme Court soon, perhaps as early as its 2017-18 Term. By then, the Court is likely to be back to a five-member conservative majority, assuming the Senate either confirms Trump’s nomination of Judge Neil Gorsuch or, if that stalls, another conservative nominee.  It is even possible that Trump may have a second vacancy to fill before this issue gets back to the Court, in which case the plaintiffs may face very long odds against success.

 

 

Trump Administration Withdraws Title IX Guidance in Contradictory “Dear Colleague” Letter

Posted on: February 23rd, 2017 by Art Leonard No Comments

 

The Trump Administration, keeping a promise made by Donald Trump during his campaign to leave the issue of restroom and locker room access by transgender students up to state and local officials, issued a letter to all the nation’s school districts on February 22, withdrawing a letter that the Obama Administration Education Department submitted in the Gavin Grimm transgender rights case on January 7, 2015, and a “Dear Colleague” letter sent jointly by the Education and Justice Departments to the nation’s school districts on May 13, 2016.

 

The Obama Administration letters had communicated an interpretation of Title IX of the Education Amendments of 1972, a statute banning sex discrimination by educational institutions that receive federal money, as well as a DOE regulation issued under Title IX, 34 C.F.R. Section 106.33, governing sex-segregated facilities in educational institutions, to require those institutions to allow transgender students and staff to use facilities consistent with their gender identity. The regulation says that educational facilities may have sex-segregated facilities, so long as they are “equal.”

 

The February 22 letter states that the Departments “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Department thus will not rely on the views expressed within them.”  It also states that the departments “believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy,” embodying Trump’s articulated campaign position on this issue.

 

At the same time, however, the February 22 letter stated: “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” and insisted that the withdrawal of the earlier guidance documents “does not leave students without protections from discrimination, bullying, or harassment” and that the Education Department’s Office of Civil Rights “will continue its duty under law to hear all claims of discrimination and will explore every opportunity to protect all students and to encourage civility in our classrooms.” It asserts that the two departments “are committed to the application of Title IX and other federal laws to ensure such protection.”

 

However, Press Secretary Sean Spicer said on February 22 that the administration was analyzing its overall position on Title IX, which could result in parting ways from the Obama Administration’s view that Title IX prohibits gender identity discrimination in schools.

 

Thus, an internal contradiction appears. The letter at least implies that sexual orientation and gender identity discrimination do violate Title IX, but that the question whether transgender students should be allowed access to sex-segregated facilities consistent with their gender identity needs further study and perhaps needs to be addressed in a new regulation accompanied by detailed analysis that is put through the Administrative Procedure Act process of publication of proposed rules, public comment and hearing, and final publication in the Federal Register, with Congress having a period of several months during which it can intervene to block a new regulation.

 

The Solicitor General’s office, which represents the government in Supreme Court cases, also informed the Court on February 22 that the Obama Administration guidance documents had been withdrawn, that the views expressed in them would no longer be relied upon by those executive branch agencies, and that, instead, the administration would “consider further and more completely the legal issues involved.”

 

This development comes just six weeks before the Supreme Court argument scheduled for March 28 in Gloucester County School District v. G.G. (the Gavin Grimm case), and just before the due date for the Solicitor General to file an amicus brief presenting the government’s position on the issues before the Court.

 

The Court might react to this development in a variety of ways. Since the government is not a party in the case, the Court might just ignore the letter and go ahead with the argument.  Or it might consider that this development renders moot one or both of the questions on which it granted review, which could lead to a reshaping of the case to focus solely on the appropriate interpretation of Title IX and the facilities regulation.  It might even decide that the entire case should be sent back to the 4th Circuit for reconsideration in light of these developments.

 

The new Dear Colleague letter, sent over the signatures of Acting Assistant Secretary for Civil Rights Sandra Battle (Education Department) and Acting Assistant Attorney General for Civil Rights T.E. Wheeler, II (Justice Department), shows the signs of compromise reflecting the reported battle between Betsy DeVos, the recently-confirmed Secretary of Education, and Jeff Sessions, the recently-confirmed Attorney General. Several media sources reported that DeVos did not want to withdraw the earlier Guidance, but that Sessions was determined to do so.

 

In light of his record on LGBT issues as a Senator and former Attorney General of Alabama, Sessions is reportedly bent on reversing the numerous Obama Administration regulations and policy statements extending protection to LGBT people under existing laws. It was probably a big disappointment to him that the President decided not to rescind Obama’s Executive Order imposing on federal contractors an obligation not to discriminate because of sexual orientation or gender identity, and we may not have heard the last on that issue.

 

DeVos, by contrast, is reportedly pro-LGBT, despite the political views of her family, who are major donors to anti-LGBT organizations. According to press accounts, for example, in Michigan she intervened on behalf of a gay Republican Party official whose position was endangered when he married his partner.

 

Several newspapers and websites have reported that DeVos and Session brought their dispute to the President, who resolved it in favor of Sessions, leaving it to them to work out the details. Trump was undoubtedly responding to the charge by many Republicans that the Obama Administration had “overreached” in its executive orders and less formal policy statements, going beyond the bounds of existing legislation to make “new law” in areas where Congress had refused to act and overriding state and local officials on a sensitive issue.  In this case, Republicans in both houses had bottled up the Equality Act, a bill that would have added sexual orientation and gender identity as explicitly forbidden grounds for discrimination in a variety of federal statutes, including Title IX.

 

While withdrawing the Obama Guidance documents, the February 22 the letter does not state a firm position on how Title IX should be interpreted, either generally in terms of gender identity discrimination or specifically in terms of access to sex-segregated facilities, such as restrooms and locker rooms. It criticizes the withdrawn documents as failing to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX,” and points out that they did not “undergo any formal public process,” a reference to the Administrative Procedure Act steps that are necessary to issue formal regulations that have the force of law.

 

While the withdrawn guidance documents did not have the force of law, they communicated to schools that the Education Department believed that Title IX bars gender identity discrimination and requires access to facilities consistent with a person’s gender identity, which meant that the Education Department or the Justice Department might initiate litigation or seek suspension of federal funding against districts which failed to comply. In the end, it would be up to courts to decide whether to follow this interpretation.  Furthermore, federal courts have found an “implied right of action” by individuals to bring suit to enforce their rights under Title IX, and that is not changed by withdrawal of the guidance documents.

 

The 4th Circuit’s decision of May 2016, up for review by the Supreme Court, came in a lawsuit initiated by an individual high school student, Gavin Grimm, a transgender boy who was barred from using the boys’ restrooms at his high school by a resolution of the Gloucester County, Virginia, School Board after it received complaints from members of the community. District Judge Robert Doumar had dismissed Grimm’s Title IX complaint, even though the Obama Administration sent its January 7, 2015, letter, informing the court that the Education Department believed that Title IX required the school district to let Grimm use the boys’ restrooms.  The 4th Circuit ruled that Judge Doumar should have deferred to the Education Department’s interpretation, as the regulation governing sex-segregated facilities was ambiguous on the question and the Department’s interpretation, which relied on federal appeals court and administrative agency decisions under other sex discrimination statutes finding that gender identity discrimination was a form of sex discrimination, was “reasonable.”  The School District petitioned the Supreme Court to review this ruling.

 

The Supreme Court agreed to consider two questions: (1) Whether deference to an informal letter from the Education Department was appropriate, and (2) whether the Department’s interpretation of Title IX and the regulation was correct. With the letter having been withdrawn, the question of deferring to it may be considered a moot point, but some commentators on administrative law had been hoping the Court would use this case as a vehicle to abandon its past ruling that courts should give broad deference to agency interpretations of ambiguous regulations, and the Court could decide that this issue has not really been rendered moot since it is a recurring one. Indeed, the February 22 letter implicitly raises the new question of whether the courts should defer to it in place of the withdrawn Guidance.

 

The Supreme Court’s agreement to consider whether the Education Department’s interpretation was correct might also be considered moot, since the Education Department has abandoned that interpretation, but certainly the underlying question of how Title IX and the regulation should be interpreted is very much alive, as several courts around the country are considering the question in cases filed by individual transgender students, states, and the Obama Administration (in its challenge to North Carolina’s H.B. 2, which is based on Title IX, Title VII of the Civil Rights Act, and the Equal Protection Clause of the Constitution).

 

Two groups of states filed suit in federal courts challenging the Dear Colleague letter of May 13, 2016. In one of those lawsuits, with Texas as the lead plaintiff, Judge Reed O’Connor of the Northern District of Texas ruled that the plaintiffs were likely to succeed in their challenge, and issued a nationwide preliminary injunction last August forbidding the government from enforcing this interpretation of Title IX in any new investigation or case.  The DOE/DOJ February 22 letter points out that this nationwide injunction is still in effect, so the departments were not able to investigate new charges or initiate new lawsuits in any event.  What it doesn’t mention is that the Obama Administration filed an appeal to the 5th Circuit, challenging the nationwide scope of the injunction, but the Trump Administration recently withdrew that appeal, getting the 5th Circuit to cancel a scheduled oral argument.  Of course, these lawsuits specifically challenging the Obama Administrative Guidance documents are now moot with those documents having been withdrawn by the Trump Administration, since the plaintiffs in those cases sought only prospective relief which is now unnecessary from their point of view.  Presumably a motion to dismiss as moot would be granted by Judge O’Connor, dissolving the preliminary injunction.  O’Connor’s order never had any effect on the ability of non-governmental plaintiffs, such as Gavin Grimm, to file suit under Title IX.

 

In North Carolina, the Obama Administration, former governor Pat McCrory, Republican state legislative leaders, a group representing parents and students opposed to transgender restroom access, and transgender people represented by public interest lawyers had all filed lawsuits challenging or defending H.B.2. The Trump Administration’s February 22 actions may signal that at least the federal government is likely either to abandon or cut down on the scope of its lawsuit challenging H.B.2.  Since North Carolina is in the 4th Circuit, all of these cases were likely to be affected by a reconsideration by the 4th Circuit in light of these new developments.  Around the country, several pending lawsuits have been put “on hold” by federal district judges as well, while awaiting Supreme Court action on the Gavin Grimm case.  If the Supreme Court were to reject the argument that “sex discrimination” in a statute can be broadly construed to encompass gender identity, these cases, arising under either Title IX or Title VII, may be dismissed.

 

Since the confirmation hearing for 10th Circuit Judge Neil Gorsuch, nominated by Trump for the Supreme Court vacancy, is scheduled to take place on March 20, and Democratic opposition may stretch out the confirmation process, it seems likely that there will be only eight members on the Supreme Court to consider the Grimm case. In that event, it was widely predicted that the result would be either a tie affirming the 4th Circuit without opinion and avoiding a national precedent, or a 5-3 vote with an opinion most likely by Justice Anthony Kennedy, joining with the more liberal justices to adopt the more expansive reading of Title IX.  However, this will be the first time the Supreme Court has tackled directly a gender identity issue under sex discrimination laws, so predicting how any member of the Court may vote is completely speculative.

 

 

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

Posted on: October 30th, 2016 by Art Leonard No Comments

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

The Supreme Court substantially enlivened its docket for the October 2016 Term on October 28 when it granted petitions for certiorari in Gloucester County School Board v. G.G., No. 16-273, and Packingham v. North Carolina, No. 15-1194.  In Gloucester, a school district in Virginia, obligated not to discriminate because of sex under Title IX of the Education Amendments Act of 1972, seeks review of the 4th Circuit’s decision, 822 F.3d 709 (2016), holding that the district court should defer to the U.S. Department of Education’s interpretation of a regulation on restrooms in educational facilities, 34 C.F.R. Sec. 106.33, that would require the school to let a transgender boy use the boys’ restroom facilities at his high school.  In Packingham, the petitioner seeks to overturn the North Carolina Supreme Court’s decision, 368 N.C. 380, 777 S.E.2d 738 (2015), upholding his conviction for violating North Carolina’s rules governing registered sex offenders by posting a message on Facebook.com celebrating the dismissal of a traffic ticket.  Lester Packingham claims that the broad prohibition of his use of social media violates his 1st Amendment rights.

The Gloucester Case

The Gloucester case was closely watched by LGBT lawyers and legal commentators for presenting the Court with a vehicle to respond to the broader question of whether federal laws prohibiting discrimination “because of sex,” mostly passed many decades ago, can now be construed to forbid gender identity discrimination (and maybe, also, sexual orientation discrimination), despite the obvious lack of intent by the enacting legislators in the 1960s and 1970s to reach such discrimination.  That is, to recur to a question repeatedly raised by the late Justice Antonin Scalia, are we governed by the intentions of our legislators or by reasonable interpretations of the actual texts they adopted in their statutes, or that administrative agencies subsequently adopted in regulations intended to aid in the enforcement of the statutes?  Scalia, who was an ardent foe of using “legislative history” as a method of statutory interpretation, decisively argued that courts should focus on the language of the statute, not viewed in isolation of course but rather in the context of the overall statute (including any declaration of congressional purpose contained in it), and he won unanimous concurrence by his colleagues in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), holding that a man employed in an all-male workplace could maintain an action for hostile environment sexual harassment under Title VII, even though it was unlikely that the enacting Congress in 1964 was thinking about same-sex harassment when it amended Title VII to add “sex” to the list of forbidden grounds for workplace discrimination.  Scalia wrote for the Court that we are governed by the statutory text, and thus Mr. Oncale could maintain his Title VII suit subject to his burden to prove that he was harassed “because of sex” as specified by the statute.  The Equal Employment Opportunity Commission (EEOC) has prominently cited and quoted from Justice Scalia’s Oncale opinion in its federal employment rulings of recent years (Macy, Lusardi, Baldwin) holding that discrimination because of gender identity or sexual orientation is “necessarily” discrimination “because of sex,” even though the 1964 Congress would not necessarily have thought so.  Although Gloucester does not directly involve Title VII, federal courts have generally followed Title VII precedents when they interpret the sex discrimination ban in Title IX, as the 4th Circuit explained in this case.

The controversy arose when fellow students and their parents objected to Gavin Grimm, a transgender boy, using the boys’ restrooms during fall term of his sophomore year, in 2014. The principal of the high school had given Grimm permission to use the boys’ restrooms, after being presented with the facts about Grimm’s transition and his discomfort with continuing to use the girls’ restrooms, since he was dressing, grooming, and – most significantly – strongly identifying as male.  Responding to the complaints, the Gloucester County School Board voted to establish a policy under which students were required to use the restroom consistent with their “biological sex” – the sex identified on their birth certificate – or to use a gender-neutral restroom, of which there were a few in the high school.  Grimm was dissatisfied with this turn of events and enlisted the American Civil Liberties Union (ACLU) of Virginia to sue the school board in the U.S. District Court for the Eastern District of Virginia, in Newport News.  The case was assigned to Senior U.S. District Judge Robert G. Doumar, who was appointed to the district court by President Ronald Reagan in 1981.  The plaintiff was identified in the original complaint as “G.G., by his next friend and mother, Deirdre Grimm,” but Gavin Grimm decided early on to be open about his role as plaintiff and has spoken publicly about the case.  The complaint relied on Title IX as well as the Equal Protection Clause of the 14th Amendment.

Ruling on a motion for a preliminary injunction by the plaintiff and a motion to dismiss by the defendants on September 17, 2015, 132 F. Supp. 3d 736, Judge Doumar found that Grimm could not win a ruling on the merits of his Title IX claim because, in the judge’s view, Title IX regulations expressly allowed schools to maintain separate restroom facilities for boys and girls based on “sex,” and so it was not unlawful for them to require Grimm to use restrooms consistent with his “sex” which, in the school district’s view, was female. He rejected the ACLU’s claim that he should defer to the U.S. Department of Education’s interpretation of the “bathroom regulation,” which was articulated in a letter that the Department’s Office of Civil Rights (OCR) sent in January 2015 as a “party in interest” in response to Grimm’s request for the Department’s assistance in his case.  OCR took the position, consistent with recent developments in sex discrimination law, that Grimm should be treated as a boy under the circumstances because it was undisputed that this was his gender identity, and thus under the regulation he was entitled to use the boy’s restroom, although he could also request as an accommodation to have access to gender-neutral facilities.   To Judge Doumar, the text of the regulation was clear and unambiguous, so the OCR’s attempt to ‘interpret’ the regulation in favor of Grimm’s claim was not entitled to deference from the court.  He wrote that deferring to the position articulated in the letter would allow OCR to “create a de facto new regulation.”   Doumar opined that if OCR wanted to change the regulation, it should go through the procedures set out in the Administrative Procedure Act, a time-consuming process that would result in a new or amended regulation that would then be subject to direct judicial review in the court of appeals.  As to the facts, Doumar referred to Grimm in his opinion as a “natal female” and seemingly was unwilling to credit the idea that for purposes of the law Grimm should be treated as a boy.  To Doumar, the case presented the simple question whether the school district had to let a girl use the boy’s restroom, and under the “clear” regulation the answer to that question was “No.”  While denying the preliminary injunction and dismissing the Title IX claim, Judge Doumar reserved judgment on the Equal Protection Claim.

Grimm appealed to the 4th Circuit, which reversed Judge Doumar in a 2-1 opinion on April 19, 2016.  Where Doumar saw clarity in the regulation, the 4th Circuit majority saw ambiguity, although a dissenting judge sided with Judge Doumar.  Although the regulation clearly said that schools could maintain separate restroom facilities for males and females, it said nothing directly about which restrooms transgender students could use, thus creating the ambiguity.  Unlike Judge Doumar, the 4th Circuit majority was unwilling to accept the School Board’s argument that a person’s sex is definitely established by their birth certificate.  The court took note of the developing case law in other circuits and in many district courts accepting the proposition that sex discrimination laws are concerned not just with genetic or “biological” sex but rather with the range of factors and characteristics that go into gender, including gender identity and expression.  Many federal courts (including several on the appellate level) have come to accept the proposition that gender identity and sex are inextricably related, that gender dysphoria and transgender identity are real phenomena that deeply affect the identity of people, and that transgender people are entitled to be treated consistent with their gender identity.  The court mentioned, in addition to the OCR letter, a December 2014 OCR publication setting forth the same view, which had been published on the Department of Education’s website.  Thus, the School District’s questioning of deference to an “unpublished letter” was not entirely factual, as the Department had previously published its interpretation on its website, and it was relying on an earlier ruling under Title VII by the EEOC in the Macy employment discrimination case, which was issued in 2012.

Having found that the regulation was ambiguous as to the issue before the court, the 4th Circuit relied on Auer v. Robbins, 519 U.S. 452 (1997), a Supreme Court decision holding that an agency’s interpretation of its own ambiguous regulation should be given controlling weight by the court unless the interpretation is “plainly erroneous or inconsistent with the regulation or statute.”  In other words, a reasonable agency interpretation of an ambiguous regulation should be deferred to by the court.  The 4th Circuit panel majority went on to find that the requirements of Auer were met in this case, and remanded the matter to Judge Doumar to reconsider his ruling.  The court’s discussion made clear what direction the reconsideration should take and stressed urgency. Judge Doumar reacted with alacrity, issuing the requested preliminary injunction on June 23.  The School Board sought a stay, which was denied by both Judge Doumar and the 4th Circuit, which also denied a petition for rehearing en banc. With the new school year looming, and desperate to avoid having to let Grimm use the boys’ restrooms during his final year of high school, the School Board petitioned the Supreme Court for a stay of the preliminary injunction, which was granted on August 3 by a vote of 5-3.  See 136 S. Ct. 2442.  Justice Stephen Breyer, taking the unusual step of issuing a brief statement explaining why he had voted for the stay along with the four more conservative members of the Court; said it was an “accommodation.”  There was speculation at the time about what that meant.  In light of the October 28 vote to grant the School District’s petition for certiorari, it probably meant that the four conservatives had indicated they would likely vote to grant a petition for certiorari to review the 4th Circuit’s decision, so in Breyer’s view it made sense to delay implementing the injunction and to preserve the status quo, as the case would eventually be placed on the Court’s active docket for the October 2016 Term (which runs through June 2017).  Breyer was careful to refrain from expressing any view about the merits in his brief statement.  After the School Board filed its petition for certiorari on August 29, the case generated considerable interest, attracting more than a dozen amicus briefs in support or opposition to the petition, including briefs from many states and from members of Congress.  There will undoubtedly be heavy media interest when the parties file their merits briefs with the Court, accompanied by numerous amicus briefs on both sides of the case.

The School Board’s petition to the Court posed three questions, first asking whether the %Auer% doctrine, which some of the Justices have signaled a desire to overrule, should be reconsidered; second asking whether under the Auer doctrine “an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought” merits deference; and third asking whether the Department’s interpretation of Title IX and the bathroom regulation should be “given effect”?  The Court granted the petition only as to the second and third questions, so there are not four members of the Court ready to reconsider Auer, at least in the context of this case.

The remaining questions give the Court different paths to a decision, one of which has minimal substantive doctrinal significance, while others could make this a landmark ruling on the possible application of federal sex discrimination statutes and regulations to discrimination claims by sexual minorities.

The Court might agree with the School Board that no deference is due to an agency position formulated in response to a particular case and expressed in an unpublished agency letter. This could result in a remand to the 4th Circuit for a new determination of whether Judge Doumar’s dismissal of the Title IX claim was correct in the absence of any need to defer to the agency’s interpretation, a question as to which the 4th Circuit majority has already signaled an answer in its discussion of the merits.

Alternatively, and more efficiently in terms of the development of the law, the Court could take on the substantive issue and decide, at the least, whether interpreting Title IX to extend to gender identity discrimination claims is a viable interpretation, in light of the Court’s seminal ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that an employer’s use of sex stereotypes to the disadvantage of an employee’s promotion application was evidence of intentional discrimination because of sex.  It was that ruling that eventually led federal courts to conclude that because transgender people generally do not conform to sex stereotypes concerning their “biological” sex as determined at birth, discrimination against them is a form of “sex discrimination” in violation of such federal laws as the Fair Credit Act, the Violence Against Women Act, and Title VII of the Civil Rights Act.  The EEOC also relied on Price Waterhouse in reaching its conclusion that transgender plaintiffs could assert discrimination claims under Title VII, and the 6th and 11th Circuits have relied on it in finding that claims of gender identity discrimination by public employees should be treated the same as sex discrimination claims under the 14th Amendment’s Equal Protection Clause.

Were the Supreme Court to rule by majority vote that laws banning discrimination “because of sex” also “necessarily” cover discrimination because of gender identity, rather than issuing a narrower ruling focusing solely on Title IX, one could plausibly assert that the inclusion of “gender identity” in the pending Equality Act bill would not be, strictly speaking, necessary in order to establish a federal policy against gender identity discrimination under all federal sex discrimination laws. But it is possible that the Court might write a more narrowly focused decision that would in some way be logically restricted to Title IX claims. At least one district court, in a case involving a transgender student at the University of Pittsburgh, suggested that there were significant enough differences between workplaces and educational institutions to merit a different approach under Title VII and Title IX, especially noting that many of the students affected by Title IX are not adults, while most people affected by Title VII are older, more experienced, and less susceptible to psychological injury in the realm of sexual development.  There was the suggestion that sexual privacy concerns in the context of an educational institution are different from such concerns in the context of an adult workplace.  The Supreme Court has generally preferred to decide statutory interpretation cases on narrow grounds, so it is possible that a merits decision in this case would not necessarily decide how other sex discrimination laws should be construed.

This case will most likely be argued early in 2017, and it may not be decided until the end of the Court’s term in June. Thus, it is possible that Gavin Grimm could win but never personally benefit as a student at Gloucester County’s high school, since he may have completed his studies before the final decision is issued.  But, of course, if he goes on to college, a winning decision would personally benefit him in being able to use men’s restrooms if he attends a college subject to Title IX – unless, given another complication of our times, he decides to attend a religious school that raises theological objections to letting him use such facilities and seeks to rely on the Hobby Lobby decision to avoid complying with Title IX.  We suspect, however, that his higher education would likely avoid that complication!

The Supreme Court has not granted as many petitions as usual thus far this fall, leading to speculation that it is trying to avoid granting review in cases where the justices might be predictably split evenly on the outcome and thus would not be able to render a precedential decision. If the Senate Republicans stand firm on their position that President Obama’s nominee for the vacant seat, U.S. Court of Appeals Judge Merrick Garland, will not be considered for confirmation, it is possible that the Court will have only eight justices when the Gloucester case is argued.  A tie vote by the Court would leave the 4th Circuit’s decision in place, but it would not be precedential outside of the 4th Circuit.  If a newly-elected president nominates a new candidate and the confirmation process takes the average time of several months, a new justice would probably not be seated in time to participate in deciding this case, unless the Court voted to hold it over for re-argument.  (In the past, the Court has sometimes held new arguments in cases that were heard when the Court was shorthanded.  This happened once when Justice Lewis Powell missed many arguments due to ill health, and his colleagues left it up to him whether to participate in those cases, in some instances by holding new arguments.)  This raises the possibility that Grimm’s graduation from high school might be found to have mooted the case, resulting in a dismissal on jurisdictional grounds.  This wouldn’t be an issue, of course, had the lawsuit been filed by DOE and the Justice Department, but where the plaintiff is an individual, his standing remains an issue throughout consideration of the case.

The Packingham Case

In the Packingham case, the North Carolina Supreme Court, reversing a decision by the state’s court of appeals, held that a state law restricting certain on-line social media use by all registered sex offenders was neither facially unconstitutional nor unconstitutional as applied to the defendant, Lester Gerard Packingham.  The North Carolina court, which divided 5-2 on the case, concluded that the statute was a regulation of conduct that incidentally affects freedom of speech, thus subject to heightened but not strict scrutiny, and that it survived such review due to the state’s important interest in protecting minors from sexual exploitation and to the measures taken by the legislature to narrow the scope of on-line communications that would be affected.

Packingham was convicted in 2002 of a sexual offense involving a minor. The opinion for the Supreme Court by Justice Robert H. Edmunds, Jr., does not specify the nature of the offense, but a reference in the dissenting opinion suggests it did not involve violence.  He did, however, have to register as a sex offender.  In 2008, the state legislature amended the sex offender registration law to make it a crime for a registered sex offender to “access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.”  The statute included a detailed definition of the characteristics of the kinds of sites that would be prohibited, and explicitly exempted various kinds of websites.  In effect, the ban is on sites where a registered sex offender might be able to identify and communicate directly with minors.  Sites that require individuals to be at least 18 years old in order to be members would not be affected by the ban, for example, and those that limited their services to things like commercial transactions for selling goods were also exempted.  After the law was passed, a written notice was sent to all registered sex offenders in the state advising of these new restrictions to which they must comply.  There was evidence in this case that Packingham received the notice.

In 2010 a Durham police officer began an investigation to determine whether any local registered sex offenders were violating the new law. His investigation uncovered the fact that Packingham was maintaining a facebook.com page under an assumed name and had posted messages to it, most recently a message celebrating his escape from traffic ticket liability.  The investigation did not, apparently, uncover any communications by Packingham to minors using facebook.com.  Packingham was indicted for violating the statute, and moved to dismiss the charges on 1st Amendment grounds.  The trial judge denied the motion, finding the statute constitutional as applied to Packingham while declining to rule on Packingham’s facial challenge to the statute, and he was convicted by a jury and sentenced to 6-8 months, suspended for a year while on probation.  Packingham appealed.  The court of appeals reversed, finding that the statute was unconstitutional on its face and as applied, too broadly sweeping in its effect on the free speech rights of registered sex offenders, and unduly vague.

The North Carolina Supreme Court totally rejected the court of appeals’ analysis. For one thing, the court found that the statute regulated conduct (the act of accessing the social media), not directly speech, although it clearly has an incidental effect on the ability of a sex offender to engage in speech activities using social media.  But the court decided that under the “heightened scrutiny” approach for evaluating regulations of conduct that incidentally affect speech, this statute survived because of the important state interest in protecting children, and the legislature’s care in tailoring the prohibition to focus on the kinds of social media where those so inclined could identify and communicate with minors.  The court concluded that this left open a wide variety of social media and other internet forums in which sex offenders were free to participate, and that the statute (and the notices to sex offenders) were written in such a way that somebody who sought to comply with the statute could determine which social media were off-limits.  Nobody disputed that accessing facebook.com was prohibited under this law, for example, and the court concluded that Packingham knew that facebook.com was off-limits for him, as reflected by his opening an account in an assumed name.  (What gave him away was that his photograph on the site matched the photographic depiction on his sex offender registration form.)  The court acknowledged that several similar laws in other states had been declared unconstitutionally, but sought to distinguish them as not being as fine-tuned as the North Carolina law in terms of the kinds of websites that were made off-limits.

The dissent was written by Justice Robin E. Hudson, joined by Justice Cheri Beasley. She disputed the majority’s conclusion that this was a regulation of conduct, but she determined that didn’t make much difference because she concluded that even under the standard of review used by the majority, the statute failed as overly broad and vague.  Restricting all sex offenders without regard to the nature of their offenses, for example, undercut the state’s justification of protecting minors.  Many people are required to register who committed offenses that do not involve minors, and who have no sexual interest in minors. Why, then, is the state restricting their 1st Amendment activities if its articulated justification for the restriction is to protect minors?  She also pointed out that there is no requirement that their offense leading to registration status involved using a computer, so why is their computer access being restricted?  Further, she contested the majority’s conclusion about how narrowly tailored the restriction is.  She pointed out that, literally applied, it could bar somebody from using amazon.com, because that website makes it possible for users to create profile pages including contact information facilitating communications between users with common interests.  Indeed, she pointed out that some websites allow minors to register with the approval of their parents.  One such is the largest circulation daily newspaper in North Carolina, so theoretically Packingham could be barred from accessing the newspaper on-line.  She argued that the law is both facially unconstitutional and unconstitutional as applied to Packingham.

In petitioning the Supreme Court for review, Packingham’s counsel wrote: “The statute singles out a subclass of persons, who are subject to criminal punishment based on expressive, associational, and communicative activities at the heart of the First Amendment, without any requirement that their activity caused any harm or was intended to.” The certiorari grant extends to the questions of whether the law is facially unconstitutional or just unconstitutional as applied to Packingham.  The case has the potential to bring into question numerous state laws that seek to regulate the expressive activities of sex offenders in the name of protecting minors.  Nobody argues that the state does not have a significant interest in protecting minors from sexual exploitation, or that the internet has created new opportunities for adults who are sexually interested in minors to locate and communicate with them.  At issue is how broadly such laws may sweep.  Should the laws pay more attention to the nature of sex offenses leading to registration in deciding whose activities should be restricted, and how narrowly tailored must the restrictions be to avoid subjecting individuals to long-term (even life-long in some cases) restrictions on their ability to use one of the main vehicles for communication in the 21st century without substantial justification for the limitation.  The petition was supported by an amicus brief from professors concerned with the law’s substantial burden they perceived on communicative freedom imposed by the statute.  Interestingly, N.C. Attorney General Roy Cooper did not want to bother responding to the certiorari petition, and filed a waiver of the right to respond on April 6, but then was requested to respond after the amicus brief was filed, and ultimately filed a response on June 30.

The interests of LGBT people are significantly implicated by this dispute. Even after the Supreme Court declared in 2003 that laws against gay sex were not enforceable against individuals engaged in private, adult consensual activities, there is a not inconsiderable number of gay people, especially men, who are still affected by sex registration requirements in many states based on pre-2003 criminal convictions and continuing enforcement of laws involving solicitation, conduct in public, prostitution, and, of course, intergenerational sex.  Many offender registration laws sweep broadly encompassing a wide variety of activity that is not specifically protected under the U.S. Supreme Court’s Lawrence v. Texas ruling, and litigation is ongoing challenging the continued registration requirements imposed in some jurisdictions on people whose offender status is based on pre-Lawrence convictions for conduct that may no longer be criminalized.  In this connection it is notable that there are still several states that have not legislatively reformed their sex crimes laws to comply with the Lawrence ruling, as a result of which law enforcement officials continue to make arrests for constitutionally protected conduct.