G.G. ex rel. Grimm v. Gloucester County School Board: Broadening Title IX’s Protections for Transgender Students

Sam Williamson

In G.G. ex rel. Grimm v. Gloucester County School Board, the United States Court of Appeals for the Fourth Circuit reversed the dismissal of a transgender boy's Title IX claim. G.G., known outside of court documents as Gavin Grimm, sought access to the boys' restroom at his school. Sex-segregation of bathrooms is legal under Title IX because of a Department of Education regulation. At the time the Fourth Circuit first heard G.G., the Department of Education interpreted its regulation as requiring schools to provide transgender students access to the restrooms consistent with their gender identity. The Fourth Circuit held that because the Department's regulation was ambiguous, and because the interpretation was not plainly erroneous or inconsistent with the regulation or Title IX, the Department's interpretation merited controlling weight. Thus, the Fourth Circuit set the legal foundation to allow a transgender boy to access the boys' restroom in public schools.

While the Fourth Circuit's decision led to the appropriate conclusion—that the Gloucester County School Board must give Gavin access to the boys' restroom—the Fourth Circuit should have conducted its own statutory interpretation. The Fourth Circuit correctly noted that the Department of Education regulation was ambiguous and that the Department's interpretation of the regulation was not plainly erroneous or inconsistent with the statute. Accordingly, under the existing doctrinal framework, the Fourth Circuit correctly granted deference to the interpretation. Yet, this framework is inadequate for protecting marginalized groups, such as transgender students. The judiciary should not continue to grant deference to administrative agencies on questions concerning the rights of discrete and insular minorities when the agencies' authority to regulate was merely implicitly delegated. Instead, courts should extend the major questions doctrine to include regulations that substantially implicate the rights of discrete and insular minorities. If the court did not grant deference and conducted an independent analysis, the court should have looked to the analogous Title VII. Applying Title VII case law, the court should have reached the same conclusion—Gloucester County School Board must allow Gavin to use the boys' restroom.