The Supreme Court was scheduled to hear argument later this month in Gloucester County School Board v. G.G., which presented the question whether a school district policy forbidding a transgender boy from using the boys’ restroom in his public high school violates Title IX, a federal civil rights statute that forbids sex discrimination by schools that receive federal funds. The U.S. Court of Appeals for the Fourth Circuit held that the school’s approach does violate Title IX, but its ruling relied on a policy of the Obama administration’s Department of Education—formalized in a January 2015 letter—concluding that Title IX requires that students be permitted to use restrooms that correspond to their gender identity. When the justices granted review of the Fourth Circuit ruling, they expected that much of the case would focus on a question of administrative law: Was deference to the letter policy appropriate?
However, as Professor Joanna Grossman explained last week, the Trump administration disavowed the Obama administration policy, citing concerns about states’ rights. Accordingly, on Monday, the Supreme Court sent the case back to the appeals court for reconsideration in light of the new administration’s position.
With the administrative law issue removed from the case, the appeals court will now focus on the meaning of Title IX itself. We can discern what arguments the parties will likely make based on the arguments they presented to the Supreme Court.
Plaintiff Gavin Grimm argued that the school board’s policy discriminates against him on the basis of sex because the term sex, as used in Title IX, includes gender identity. (Because Grimm is a minor, the case caption refers to him by his initials, but he has made numerous public appearances under his actual name, and thus using it causes him no harm; indeed, insistence on using initials could be taken to imply that there is something shameful about being transgender.)
In addition, a Supreme Court amicus brief on behalf of myself and three other law professors argued that the board policy excluding Grimm from the common restrooms and publicly stigmatizing him as unfit to use the same restrooms as all other boys discriminates against him based on sex in the most literal way: it excludes him from the male restroom on the basis of his sexual anatomy. A longstanding federal regulation permits federally funded educational institutions to sex-segregate restroom facilities. Our brief argued that while such sex-segregation may be innocuous as applied to most (cisgender) students, the school board’s policy contravenes Title IX (and is thus invalid) when applied to transgender students because of the severe harm it inflicts on them without furthering any important institutional interests.
On the other side, the school board has argued that the Congress that enacted Title IX intended “sex” to refer to what the board’s Supreme Court brief called “physiological distinctions between males and females,” warning that a ruling for Grimm would upend the “universally accepted practice of separating restrooms, locker rooms, showers, athletic teams, and dormitory rooms based on” such distinctions. As readers no doubt can infer from the fact that I filed a brief in support of Grimm, I find this line of argument unpersuasive—not least because, even in this very case, it is incoherent: Grimm has received testosterone hormone therapy and undergone chest reconstruction surgery; in nearly all outwardly observable respects, he presents as physiologically male. Beyond the confusion at the heart of the school board’s policy, there is no reason to think that its parade of horribles will come to pass based on a case that concerns only restrooms.
In any event, readers interested in delving deeper into the arguments back and forth would do well to read the respective Supreme Court briefs (available here). Or those pressed for time might consult Professor Grossman’s excellent analysis in last week’s column.
In the balance of this column, I explore the suggestion put forward by the Trump administration that the entire issue ought to be decided at the state level. Professor Grossman wrote that this suggestion “makes no sense in this context,” and, as I shall explain, I agree. But to understand why that is so, we must first acknowledge that in some other contexts states’ rights—or, as the case law typically refers to this interest, federalism—is relevant to the interpretation of federal statutes.
A Legitimate Role for Federalism in Statutory Interpretation
Some federal statutes explicitly contemplate participation of state government officials in carrying out their objectives. Federal laws such as the Clean Air Act and the Clean Water Act as well as federal programs like Medicaid and highway grants are just some examples of so-called cooperative federalism: The federal government sets the broad policy and provides most or all of the funding; states that choose to participate have an important role in implementing the policy. States’ rights are baked into such programs.
Even when a federal law does not require or encourage state participation in its implementation, a court construing unclear provisions of that law might do so in a way that preserves flexibility for states. Why? Three sorts of reasons can be offered.
First, conditions might vary from place to place. By construing a federal statute to allow state and local governments greater freedom, courts leave open possibilities that suit such different conditions.
Second, even when the relevant conditions are relatively uniform nationwide, construing federal law to provide states and localities more freedom encourages a variety of approaches. Such freedom allows each state to serve as what Justice Louis Brandeis famously called “a laboratory” for “novel social and economic experiments without risk to the rest of the country.”
Third, the U.S. Constitution creates a system of dual sovereignty in which the federal government acts on its enumerated powers while the states act on their reserved powers when doing so does not conflict with either a federal law or the Constitution itself. The Supreme Court has sometimes narrowly construed federal statutes to avoid attributing to Congress the intention to go all the way to the edge of its powers or required a clear statement by Congress to do so.
Values Conflict and Federalism
None of the factors thus-far discussed seems to bear on the question whether Title IX permits a school board to bar a transgender boy from the boys’ restroom. After all, when Congress enacts legislation protecting civil rights and civil liberties—as it has done since Reconstruction—it necessarily determines that on these matters, national policy prevails over regional variation and any interest in experimentation.
There is, however, a different sort of argument for states’ rights that one sometimes encounters and that appears to have animated the Trump policy. When social norms lag behind legal norms, courts will sometimes hesitate to require that parties comply with the full measure of the legal norms.
Why would a court trim its sails in that way? As Alexander Hamilton observed in Federalist 78, courts have neither the power of the purse nor of the sword, and thus must ultimately depend on political actors for the fulfillment of their judgments. Where the judicial view of an issue outpaces social norms by too wide a margin, a judge may be tempted to hold back, even if in doing so she fails to act on her best legal judgment.
Examples of this sort of trimming are well known in constitutional law. Most famously, in the case that came to be known as Brown II, the Supreme Court did not order that Jim Crow states immediately desegregate their schools, partly for fear that doing so would spark a backlash. Instead, the Court ordered that jurisdictions practicing de jure segregation move to desegregate “with all deliberate speed.”
Dissenting from the Supreme Court’s decision finding a constitutional right to same-sex marriage, Chief Justice Roberts expressed a similar worry to the one that animated the Brown II Court. He thought that a right to same-sex marriage would be better accepted by the People if they chose it democratically than if it were (as he saw the matter) imposed on them by the courts.
Why Federalism Fails in the Gloucester County Case
Yet these two leading examples of the argument for going slowly when there is value conflict ultimately undermine rather than support the states’ rights argument in a case like Gloucester County.
For one thing, the notion that courts ought not to get too far ahead of public opinion on matters of civil rights and civil liberties has somewhat greater force in constitutional cases than in statutory cases like Gloucester County. After all, if a ruling construes a statute in a way that substantial portions of the country find troubling, Senators and representatives from the relevant states can use their influence in Congress to enact new legislation.
To be sure, Grimm’s original complaint included a claim under the Equal Protection Clause of the Fourteenth Amendment, not just Title IX. Although the Supreme Court did not grant review to decide the constitutional issue, it could arise on remand or in a future case involving a different plaintiff. And a ruling that a policy like the Gloucester County School Board’s restroom policy violates the Constitution would not be amendable by an act of Congress.
But even with respect to constitutional questions, the don’t-go-too-fast approach is deeply flawed. Consider Brown II. Far from using the breathing space that the Court afforded them to desegregate in an orderly fashion that allowed white southerners to buy into the ruling, politicians throughout the South engaged in a practice of massive resistance, while their lawyers used the all-deliberate-speed formula as an excuse for foot dragging. It was not until Congress enacted the 1964 Civil Rights Act, which among other things, put the resources of the Justice Department behind desegregation efforts, that substantial changes began to occur. By that point, a clearly frustrated Supreme Court had declared: “The time for mere ‘deliberate speed’ has run out.”
Conversely, the Chief Justice’s fears that a ruling in favor of same-sex marriage would spark a backlash or undermine support for marriage equality have (thus far) proved unwarranted. According to Pew polls, that support has remained steady since the Court’s ruling in the summer of 2015. According to Gallup polls, support for marriage equality has increased.
None of this is to say that judges should simply impose their values on a reluctant society. However, if judges are not philosopher-kings, neither are they skilled soothsayers who can predict with any certainty when the People will turn against a ruling versus when the People will be guided by it. Faced with such uncertainty, judges and justices should interpret and apply the law, as best they see it. In the current case, that should mean ruling in favor of Gavin Grimm and rejecting the Trump administration’s states’ rights argument.
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