Case 3:17-cv-00739-TJC-JBT Document 192 Filed 07/26/18 Page 60 of 70 PageID 10738
rely on Title IX to prohibit transgender students from accessing bathrooms consistent with their gender identity). But see Evancho, 237 F. Supp. 3d at 297–301 (finding the uncertain legal landscape created by the 2017 withdrawal of the 2016 Guidance, coupled with the Supreme Court’s decision to stay its consideration of the Fourth Circuit’s G.G. decision in light of that withdrawal,[1] meant plaintiffs could not demonstrate a likelihood of success on their Title IX claim at that time to support entry of a preliminary injunction (which the court nevertheless granted on their Equal Protection claim)).
It is true, as the School Board notes, that some of the transgender school bathroom decisions which considered Title IX relied on the now rescinded guidance in reaching a result. See, e.g., G.G., 822 F.3d at 721 (applying Auer[2] deference to agencies’ interpretation of ambiguous term “sex” to find transgender student alleged violation of Title IX), vacated and remanded, 853 F.3d 729 (4th Cir. 2017); Highland, 208 F. Supp. 3d at 869–70 (entering preliminary injunction on Title IX claim after giving Auer deference to ambiguous term “sex”). However, cases examining the question
- ↑ The Supreme Court subsequently remanded G.G. for further consideration of the Title IX claim, 137 S. Ct. 1239 (2017), and, as noted below, the district court recently denied the school board’s motion to dismiss the transgender student’s Title IX claim. Grimm, 302 F. Supp. 3d at 748.
- ↑ Auer v. Robbins, 519 U.S. 452 (1997) (requiring that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless plainly erroneous or inconsistent with the statute or implementing regulation).
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