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Constitution Check: Is the transgender rights case a big test for the bureaucracy?

June 10, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how a new case involving a transgender student is shaping up as a significant test of judicial deference to bureaucratic views.

bathroom535-451x300THE STATEMENTS AT ISSUE:

“The Education Department and the Justice Department created an ambiguity [in the scope of Title IX] where one never existed and replaced the term ‘sex’ with ‘gender identity.’   The implications are endless if Executive Branch agencies are permitted to rewrite statutes and regulations whenever they are able to manufacture an ambiguity no matter how novel it may be.  Principles of federalism and separation of powers are at stake, and time is of the offense.”

 – Excerpt from a filing in federal appeals court on June 7 by the Gloucester County (Va.) School Board, announcing its plan to appeal to the Supreme Court to test whether Title IX of federal civil rights laws protects transgender people against discrimination based upon their “gender identity.”  The case will be filed at the Supreme Court by August, the board said.


With the vast growth of federal regulatory agencies, in the 1930s and 1940s, the idea spread that technical expertise was a good thing to have in government, and that it would be a hallmark of a professional bureaucracy, a “technocracy.”  Courts apparently shared that view, and developed the idea that they should be generous in accepting what those agencies had to say about enforcing federal administrative law.  That might be called the “doctrine of deference,” because it generally meant that judges would not second-guess too greatly what the agencies did in interpreting their own regulations.

The doctrine probably got its start in a case that grew out of controversy over price controls that the federal government had imposed in an attempt to hold down inflation during World War II.  It began, it seems, with the Supreme Court’s 1945 decision in the case of Bowles v. Seminole Rock & Sand Co., involving price controls on crushed stone.

In that ruling, the Justices said the agencies themselves should have the primary opportunity to spell out what their own regulations mean, if those regulations are ambiguous. Here is what the opinion said: “The ultimate criterion [of what a regulation means] is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”

The court has followed that approach repeatedly, and did so most notably in a 1996 decision in the case of Auer v. Robbins.  That decision came in the case of Labor Department interpretations of its own regulations dealing with overtime pay for public employees – in that case, police sergeants and lieutenants, who had some supervisory responsibilities.  That ruling has grown in importance so much that the doctrine of deference to federal agency interpretations of their own rules now gets its name from that case: “Auer deference.”

The whole idea that judges should be strongly deferential to regulatory agencies, though, has been gaining critics for years, particularly with the intensification of business challenges to pervasive regulation of their day-to-day operations by the Washington bureaucracy.  That resentment has also been encouraged by “smaller government” advocates, like Tea Party elements.

But the doctrine also has developed critics within the judiciary, on the premise that it undercuts the obligation of judges to interpret what federal laws are to mean, and how they are to be enforced, and thus intrudes on Article III’s allocation of power to the judiciary. Judges also have argued that agencies can unfairly surprise those that they regulate by switching their interpretations without consulting anyone.

Auer deference” has been challenged most conspicuously by the Justice who wrote that decision in 1996: the late Antonin Scalia.  Last year, Scalia argued simply that the concept should be abandoned.   Three other Justices have joined in questioning it; Justice Clarence Thomas, one of those three, did so as recently as last month when the issue of the doctrine’s continued validity came up anew.

A new case that is on its way to the Supreme Court is shaping up as another, perhaps quite significant test of judicial deference to bureaucratic views.  That is the case of a 16-year-old transgender student in a high school in Virginia, who sued when he was denied access to the boys’ restroom (the youth was identified as a girl at birth but identifies as a boy).   The school board in Gloucester County is preparing to appeal to the Supreme Court to challenge a federal appeals court ruling that explicitly invoked “Auer deference” in reviewing the meaning of the federal civil rights law that outlaws discrimination “based on sex” – Title IX, enacted in 1972.

The U.S. Court of Appeals for the Fourth Circuit concluded in the Gloucester County case that it had a duty to accept the interpretation of the federal Education Department that the phrase “based on sex” in Title IX reaches discrimination based on “gender identity” and that the protection extends to restroom access.

In announcing its plans to appeal to the Supreme Court, the school board said explicitly that it would challenge the Circuit Court’s deference to federal education officials.   It noted the criticism of the doctrine by members of the Court, and warned that continued adherence to the doctrine would mean violations of federalism – that is, the right of state and local government to manage education themselves – and separation of powers.  The school board is contending that education officials invented themselves the idea that the word “sex” was not limited to biological sense, and then went further and invented the idea that it applies to transgender discrimination based on “gender identity.”

The planned appeal, the school board added, will also argue that the bureaucracy’s interpretation of Title IX poses a major threat to “the dignity and freedom of bodily privacy.”

If the Supreme Court takes on the case, it would appear that there is no way the Justices could decide the controversy without first saying whether the broader interpretation of Title IX was the kind of public policy view to which the courts did owe “Auer deference.”  It would take the votes of only four Justices to grant review of the case, and of that issue.   It is already apparent that there are Justices who will be arguing for that review.

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