As I noted here, the Yale Journal on Regulation’s Notice & Comment blog is hosting an online symposium on Seminole Rock and Auer deference. My contribution, posted today, discusses the relevance of Seminole Rock and Auer for the debate over the Obama administration’s guidance on accommodation of transgender students in educational institutions under Title IX. It begins:
All G.G. wanted was to be like other high schoolers, and use the bathroom that corresponds with his gender identity. Yet this small request triggered a high-profile legal battle over the meaning and application of Title IX that may be well on its way to the U.S. Supreme Court. After losing in the U.S. Court of Appeals for the Fourth Circuit, the Gloucester County School Board obtained a stay of the lower court’s judgment from a divided Court. A petition for certiorari is now pending.
Many people may have strong opinions on how (and perhaps even whether) schools and other educational institutions should accommodate transgender students. Yet the ultimate outcome in G.G. v. Gloucester County School Board and other cases challenging the Department of Education’s policy on the accommodation of transgender students may ultimately turn on questions of administrative law — the vitality and application of Seminole Rock/Auer deference in particular. This is because one of the central issues in these cases is whether courts should defer to the Department of Education’s interpretations of its own regulations implementing Title IX, put forward in various letters and guidance documents. The controversy illustrates how Seminole Rock/Auer deference often operates in the real world and the problems it can create.
Additional contributions to the symposium are indexed here.