This Little-Noticed Supreme Court Action Is Great News for Transgender Restroom Access


The Supreme Court drew headlines on Monday morning when it sent a hotly contested case over contraception coverage back to the lower courts. But the court's action in a lesser-noticed case comes with major implications for another politically charged social issue: the fight over restroom access for transgender people.

Here's what the Court did: The justices declined on Monday to review the court's 1997 ruling in Auer v. Robbins, in which the court held that federal agencies should be free to interpret their own regulations, unless the interpretation is "plainly erroneous or inconsistent with the regulation."

Read more: Obama's Directive on Transgender Restrooms Reflects His Lasting Legacy on LGBTQ Rights

As Politico reported, the case before the justices on Monday pertained to student debt collection, but the court's refusal to reconsider its Auer ruling is excellent news for supporters of the Obama administration's directive to public schools that Title IX's ban on sex discrimination requires allowing transgender students to use facilities that match their gender identities.

What it means: The Auer case has already figured in litigation over transgender restroom access.

ThinkProgress noted that in an April ruling which held that schools denying restroom access to trans students could have their federal funds slashed, Judge Henry Franklin Floyd of the United States Court of Appeals for the Fourth Circuit relied on Auer's holding that agencies are entitled to leeway as long as a regulation is "ambiguous."

Title IX's ban on sex discrimination, Floyd wrote, "is susceptible to more than one plausible reading" — namely, sex defined strictly by genitalia or on the basis of one's gender identity. Under Auer, the Education Department is therefore allowed to operate on whichever definition it chooses in carrying out the regulation.

Of course, the court's action on Monday is no ironclad guarantee that the administration's directive is here to stay. A Donald Trump administration, for instance, would be free to scrap the order based on an interpretation that sex discrimination pertains only to assigned sex at birth.

But the Auer ruling itself appears safe regardless of who emerges victorious in the November election. Only Justice Clarence Thomas, a conservative appointed by President George H. W. Bush, favored revisiting the precedent.