Herring (Yes, the Fish) May Overturn Transgender Bathroom Cases
The U.S. Supreme Court made some big moves in January around transgender students in school bathrooms.
On January 16, 2024, the court refused to take a case that would have answered the national question about school bathrooms for trans* students.
But the next day, they heard a case about fish that likely do just that (and more).
Yes, fish.
It Starts with the Chevron Doctrine
Yes, technically, Chevron references Chevron oil and gas company. But Chevron pattern is more fun.
In 1984, the U.S. Supreme Court (SCOTUS) heard a case called Chevron v. Natural Resources Defense Council. In Chevron, SCOTUS looked at how federal agencies enforced laws passed by Congress.
SCOTUS decided that judicial deference is appropriate where the federal agency’s rule is a “reasonable” interpretation of an “ambiguous” law.
The Chevron Doctrine says: “Federal agency, you’re the experts on the ground doing this work, day-in and day-out. If Congress hasn’t explicitly said what a law means, we trust that you have the expertise to fill in the blanks. The court will defer to your interpretation of an ambiguous law.”
While it's been narrowed and revised since 1984, the Chevron Doctrine is a widely understood precedent. It’s also a political lightning rod for judges, as conservatives have argued that courts – rather than federal agencies – should say what the law means.
Is Chevron Finished?
After 40 years, it looks like SCOTUS wants to dramatically change, or even throw out, the Chevron Doctrine and its progeny.
On January 17, 2024, the court heard oral argument in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce (“Loper”).
In that case, Congress passed a statute that said the National Marine Fisheries Service (a federal agency) may require fishing vessels to carry federal observers on board to prevent overfishing.
The statute wasn’t clear about who paid for those federal observers.
To enforce this statute, the National Marine Fisheries Service issued a rule saying the fishermen must bear the costs of the observers on their boats.
Side note: This is a great storyline in the movie CODA, where a struggling family of Deaf fisherman have to pay $800/day for a federal “at-sea monitor” on their boat.
The Atlantic herring industry ain’t having this, and attorneys sued to get this fisheries rule thrown out.
When SCOTUS took up the case, the justices indicated strong disagreement with the Chevron Doctrine and deferring to federal agencies.
What Do Fish Have To Do With Trans* Kids?
Congress passed Title IX in 1972, a statute that prohibits discrimination on the basis of “sex” in schools. But “sex” isn’t defined in the law. Does “sex” mean…
Genitalia and reproductive parts?
Failure to conform to the expectations of your sex?
Gender identity?
Sex characteristics?
Chromosomal makeup?
Over the years, the U.S. Department of Education (a federal agency) has issued regulations saying what they interpret “sex” to mean.
In 2016, the U.S. Department of Education under President Obama issued guidance saying Title IX’s “prohibition [on sex discrimination] encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”
So any court cases that asked “Does Title IX mean a transgender student should use the bathroom of their gender identity?” deferred to the Obama-era guidance under the Chevron Doctrine. Those courts determined yes, a transgender student should use the bathroom of their gender identity at school. See G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020).
Then, federal administrations changed.
By 2017, the U.S. Department of Education was under President Trump, who rescinded that earlier Obama-era guidance about “sex” including gender identity.
So any court cases that asked the same question about bathrooms, applying the Chevron Doctrine, now could reach a different conclusion under President Trump’s administration.
Then, the federal administration changed. Again.
This is why the Chevron Doctrine can get tricky. When courts defer to the U.S. Department of Education to interpret Title IX, and when Title IX guidance and regulations change with each president, schools can ping-pong without a clear answer.
In eight years (2016-2024), the U.S. Department of Education will change Title IX’s interpretation of “sex” three times. Schools and LGBTQIA+ students are caught in a political ping-pong match.
In 2024, the U.S. Department of Education under President Biden will release revised Title IX regulations that will almost certainly declare Title IX applies to gender identity. (And, if a Republican president wins in November 2024, it’s likely those Title IX regulations will be changed back again.)
But will it even matter?
Will the Chevron Doctrine still stand?
Will courts defer to this Biden-era interpretation of Title IX, or instead use their own judicial interpretation for what Title IX means with respect to student gender identity — in bathrooms, locker rooms, athletics, pronouns, and more?
It is likely that, in the next 18-24 months, we will see Title IX’s gender identity protections be challenged in courts that no longer apply Chevron Deference to the U.S. Department of Education’s interpretation of Title IX.
What Should Schools Do Now?
Schools in 17 states in the 4th, 7th, and 9th Circuits still have solid federal court rulings saying Title IX protects LGBTQIA+ students.
More explicitly, schools in Illinois, Indiana, Wisconsin, Maryland, Virginia, West Virginia, North Carolina, and South Carolina have federal court rulings declaring that denying a transgender student the bathroom of their gender identity is a violation of Title IX. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786, 2023 WL 4881915 (7th Cir. 2023); G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020).
But schools in the Florida, Alabama, and Georgia have a solid federal court ruling saying the opposite. Adams v. Kasper v. School Board of St. Johns County, Tim Forson, et al., 57 F.4th 791 (11th Cir. 2022).
We thought this “circuit split” would cause SCOTUS to take up the issue of transgender kids in school bathrooms. But the court seems more inclined, at least for now, to side-step this particular cultural landmine and instead chip away at its underlying legal foundation.
We’ll find out o-fish-ially (eh?) when the final Loper decision is issued, likely in June 2024.
But overturning the Chevron Doctrine will have immense effects on all federal regulatory schemes, not just Title IX and LGBTQIA+ students.
All thanks to herring.
Yes, the fish.
Want to Know More?
Imprint Legal Group’s Jessica Heiser and Kacey Ramsey conduct Title IX and Gender Inclusive School trainings nationwide. In April 2024, they will present on Student Gender Rights at the National School Board Association's 2024 School Law Seminar, alongside renowned scholar Erwin Chemerinsky.
Imprint Legal Group advises schools on Title IX compliance and gender inclusive school cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.
All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of January 2024.
