A male and female bathroom sign is not so straightforward in the North Carolina Bathroom Bill Lawsuit

No Mention of Title IX in North Carolina Bathroom Bill Lawsuit

The North Carolina bathroom bill lawsuit filed by the Governor contains no mention of Title IX.

As ABC News has reported: “North Carolina and the U.S. Justice Department sued each other today amid escalating tension over a controversial law that critics have called “anti-LGBT.”

North Carolina first filed a lawsuit today against the Department of Justice in an effort to push back against a warning that House Bill 2 violates the Civil Rights Act. The law bans people from using bathrooms that don’t match the sex indicated on their birth certificate.

The Justice Department then filed its own [lawsuit] saying “transgender individuals seeking access to covered facilities have suffered and continue to suffer injury, including, without limitation, emotional harm, mental anguish, distress, humiliation, and indignity as a direct and proximate result of compliance with and implementation of HB2.”

A copy of the North Carolina bathroom bill lawsuit filed by the Governor can be viewed here. A copy of the Department of Justice’s lawsuit can be viewed here.

With no mention of Title IX in the North Carolina Bathroom Bill Lawsuit, is the Governor Acknowledging that HB2 Violates Title IX?

North Carolina took the somewhat unusual step of filing a declaratory judgment action. A declaratory judgment essentially asks the court to clarify the legal position of the parties. In this case, North Carolina asked the court for a declaratory on judgment on two issues: that 1) North Carolina’s “bathroom bill” complies with Title VII; and 2) The bill also complies with the Violence Against Women Reauthorization Act of 2013 (“VAWA”).

Interestingly, North Carolina did not seek a declaratory judgment on the specific issue of whether the “bathroom bill” complies with Title IX. In fact, the phrase “Title IX” does not appear anywhere in the document.

In contrast, the Complaint filed by the Department of Justice mentions Title IX no fewer than 9 times in the 14-page filing.

Significantly, North Carolina is in the Fourth Circuit, and is subject to the rulings of the Fourth Circuit Court of Appeals.

A recent Fourth Circuit case, G.G. v. Gloucester County School Board, No. 15-2056, (4th Cir. April 19, 2016) strongly supports the DOJ’s position that North Carolina’s “bathroom bill” violates Title IX. The Gloucester decision concerned whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity. The Fourth Circuit Court of Appeals applied Auer deference to an Office of Civil Rights opinion letter concerning the treatment of transgender individuals. The court held: “We conclude that the Department’s interpretation of its own regulation, §106.33, as it relates to restroom access by transgender individuals, is entitled to Auer deference and is to be accorded controlling weight in this case.”

The Fourth Circuit further explained: “The Supreme Court commands the use of particular analytical frameworks when courts review the actions of the executive agencies. G.G. claims that he is entitled to use the boys’ restroom pursuant to the Department’s interpretation of its regulations implementing Title IX. We have carefully followed the Supreme Court’s guidance in Chevron, Auer, and Christopher and have determined that the interpretation contained in the OCR letter is to be accorded controlling weight.”

Applying the Auer deference standard, the Fourth Circuit in effect concluded that Title IX requires schools that receive federal funds to acknowledge the gender identity of transgender students. North Carolina’s bathroom bill does not do this, since it requires students to use the bathroom that corresponds only to the sex on their birth certificate. By not following this interpretation, North Carolina risks losing federal funds and faces the prospect of individual Title IX lawsuits brought by aggrieved transgender students in North Carolina schools.

Perhaps Gloucester is the reason for the curious omission of Title IX from the Governor’s North Carolina bathroom bill lawsuit.

UPDATE:

The Supreme Court declined an invitation to reconsider whether federal courts should defer to agency interpretations of an agency’s own regulations. Specifically, the court denied certiorari in United Student Aid Funds v. Bible, in which the petitioners asked the court to reconsider so-called Auer and Seminole Rock deference.”

The Supreme Court’s denial of certiorari effectively means that the Auer doctrine will remain the law. Justice Scalia had been a strong advocate of overturning Auer, even though he authored the majority opinion in that case. In this small way, it could be said that, with the denial of certiorari in Bible, Justice Scalia has managed to outlive himself. Since it takes four votes to grant certiorari, one can reasonably assume that the Court, as currently configured, has at most three Justices in favor of revisiting Auer. If true, the alignment of the Court on this issue bodes well for administrative agencies and Title IX plaintiffs.

[post written by @CWSmith_Law]