Now that the Trump administration has reversed the Department of Education policy on transgender bathroom use, the Supreme Court will probably dismiss the case it’s hearing on the matter rather than issue a decision. But even if that happens — and it isn’t 100 percent certain — the result may be better for transgender-rights advocates than judgment on the merits would have been.
In the long run, the movement would be better off with a decision that reads federal anti-discrimination law as protecting against transgender bias than with a decision that makes protection depend upon the whims of the administration charged with implementing the law.
The background to the current situation involves more than just the question of whether Gavin Grimm, a transgender student, may use the men’s room at his Gloucester County, Virginia, high school. The U.S. Court of Appeals for the Fourth Circuit held in favor of Grimm and against the high school because of an interpretation of a federal regulation issued by the Obama Department of Education.
Everyone agrees that Title IX prohibits discrimination on the basis of sex. The Department of Education’s own regulations apply that law by allowing separate bathrooms “on the basis of sex” provided they are “comparable … to facilities provided for students of the other sex.”
The Obama administration issued an interpretation of its own regulation and said that the regulation should be read to require students to have access to the bathroom corresponding to their gender identification.
The Fourth Circuit engaged in a two-step analysis. First it asked whether the regulation was ambiguous, and it said yes. Then it held that, under a Supreme Court decision called Auer v. Robbins, it would defer to the department’s interpretation of the statute so long as it was reasonable.
What lawyers call “Auer deference” is a kissing cousin of the more famous doctrine of Chevron deference, which says that the courts will defer to an agency’s reasonable interpretation of an ambiguous federal statute. Chevron deference has been in the news lately because Supreme Court nominee Neil Gorsuch has sharply criticized it. The Auer approach applies the deference principle to regulations, not statutes.
As long as the Obama administration’s interpretation of the regulation was in place, Grimm could win his case at the Supreme Court so long as the justices simply held that the regulation was ambiguous and the Obama administration’s interpretation reasonable. A 4-4 split would still have been a win, because it would have affirmed the decision below.
Now that the Trump administration has retracted this interpretation of the regulation, the justices could dismiss the case and send it back to the Fourth Circuit to reconsider in the light of the new interpretation. Supreme Court nerds have an acronym for this kind of dismissal. It’s called a DIG, short for the writ of certiorari having been “dismissed as improvidently granted.”
On reconsideration, the Fourth Circuit would be hard-pressed not to reverse its judgment and rule for the school. After all, the court has already said the regulation is ambiguous. And it can certainly be argued that the Trump administration’s interpretation is just as reasonable as that of the Obama administration, even if you think (as I do) that it is the wrong call.
All this sounds like a loss for the transgender rights movement — but it might not be the worst outcome of all the possible options. The justices still have discretion to decide whether to decide. If they keep the case, they could in theory reverse the Fourth Circuit by saying that the regulation isn’t ambiguous, but plainly demands the interpretation urged by the school board. That would require both Anthony Kennedy and a confirmed Neil Gorsuch taking that position, so it isn’t highly likely. But it would mark a major defeat for the transgender rights movement.
If, on the other hand, the case goes back to the Fourth Circuit and the school board wins, Grimm’s lawyers might well decide not to go back to the Supreme Court. That would mean there would be no Supreme Court precedent on transgender issues at all for the moment. And that would be better than a bad precedent.
It would also leave room for the Supreme Court in the future to rule on the meaning of Title IX itself, rather than the meaning of the Department of Education regulation implementing it.
Ultimately, it would be best if the Supreme Court were to rule that discrimination against transgender people is prohibited by federal law and that this requires, among other things, giving transgender people access to facilities corresponding to their gender identity.
Such a ruling may be some time in coming. But as the Trump reversal shows, it would be much more robust than a ruling that depends on deference to administrative agencies controlled by a political executive branch. Equality for transgender people is coming. And it would be best if it arrived with a strong statement of equality, not a weak statement of judicial deference to federal agencies.
The ideal result for the transgender movement would of course be for the court to keep the case and rule that the regulation is not ambiguous and that it in fact requires nondiscrimination against transgender students in bathroom use. That would in effect render the Trump administration’s position unlawful. But that possibility seems highly remote.
No lower court has yet ruled on whether the Trump administration’s approach is reasonable, and the Supreme Court doesn’t like to be the first court to weigh in on a question of law.
Noah Feldman is a columnist for Bloomberg View. Readers may email him at email@example.com.