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INTRODUCTION:

In 2013-2014, a transgender student at Gloucester High School gained permission from the school's principle to use the boy's restroom. Upon discovering this, Gloucester residents successfully petitioned the School Board to mandate students use either unisex restrooms or restrooms corresponding to their sex assigned at birth. In January 2015, the Department of Education issued an opinion letter that interpreted regulations under Title IX of the Education Amendments of 1972 permitting the sex-based separation of restrooms and locker rooms. The DOE's interpretation directed schools to allow transgender students to use their preferred facilities, or risk removal of federal education funding. 

The transgender student relied on this interpretation to sue the School Board. The district court granted the Board's motion to dismiss and denied the student's motion for preliminary injunction. However, the U.S. Court of Appeals for the Fourth Circuit reversed the decision. The Supreme Court is now asked whether the DOE's interpretation of Title IX's separation of restrooms on the basis of sex now mandates schools allow transgender students to choose facilities opposite their sex at birth, or lose federal funding.

This case implicates sensitive privacy issues involving some of the youngest members of American society. The Fourth Circuit decision, and decrees from two executive agencies, the Departments of Justice and Education (collectively “the Departments”), pose ominous threats to representative democracy and individual liberty on both vertical and horizontal levels. 

SUMMARY:

The Departments use the power of the purse, imposing conditions the states neither knew about nor agreed to when accepting federal funds. The coercive impact on school children is even more troubling—young citizens, who have no direct voice in the political arena yet subject to compulsory education laws—are compelled to sacrifice their bodily privacy on a daily basis.

Vertically, the Fourth Circuit affirms federal decrees that remove public education—a matter entrusted primarily to state and local governments—from the elected representatives closest to the people and most responsive to their concerns. Individuals are deprived of the liberty to participate in a matter of national importance in the public schools that educate their children. The ultimatums hold a “gun to the head” of local authorities using an unconstitutional threat to withdraw federal funding from those who fail to comply. The states have not explicitly consented to the Departments’ policy as a condition of funding. Public school students, subject to compulsory education laws, are compelled to sacrifice their liberty and reasonable expectation of privacy on a daily basis. At the same time, the Gloucester School Board has not denied G.G. the right to receive an education or the liberty to assume a male identity. On the contrary, the Board supported and facilitated the transition in every reasonable manner. 

Horizontally, the Fourth Circuit affirms executive actions that jeopardize the Constitution’s separation of powers, not only by issuing mandates that conflict with unambiguous statutory language but also by usurping judicial authority to interpret the law. Even under the most generous construction of Auer v. Robbins, 519 U.S. 452, 462 (1997), the Fourth Circuit’s extreme deference to the Departments is untenable. 

ARGUMENT:

  1. THE FOURTH CIRCUIT RULING WOULD ALLOW THE FEDERAL GOVERNMENT TO USURP STATE AND LOCAL AUTHORITY TO CRAFT PUBLIC POLICY.
    1. Education Is Primarily A State And Local Concern. 

    2. The Fourth Circuit Ruling Would Jeopardize The Liberty Of The People To Participate In The Political Process. 

  2. THE FOURTH CIRCUIT RULING ENDORSES COERCIVE ACTIONS THAT THREATEN THE LIBERTY OF LOCAL SCHOOL DISTRICTS AND STUDENTS.
    1. The Ruling Would Allow The Federal Government To Coerce School District Compliance By Threatening Withdrawal Of Federal Funds.
    2. The Ruling Would Allow The Federal Government To Coerce Students In An Environment Where Their Attendance Is Mandatory.
    3. The School District Has Not Denied G.G.’s Liberty To Assume A Male Identity.

  3. DEFERENCE TO THE FERG-CADIMA LETTER WOULD VIOLATE THE SEPARATION OF POWERS.
    1. The Fourth Circuit Ruling Would Allow The Executive Branch To Invade Legislative Territory Because Their Recent Interpretation Conflicts With Unambiguous Language In Both Title IX And Its Implementing Regulation.
    2. The Fourth Circuit Ruling Would Allow The Executive Branch To Usurp Judicial Power To “Say What The Law Is.”
    3. No Reasonable Legislator Would Have Defined “Sex” As “Gender Identity.” 

CONCLUSION:

Amici urge this Court to reverse the Fourth Circuit decision. 

AMICUS BRIEF:

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