In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

GLOUCESTER COUNTY SCHOOL BOARD,Petitioner,

v.

G. G., BY HIS NEXT FRIEND ANDMOTHER, DEIRDRE GRIMM,

Respondent.

On Writ of Certiorari to the United StatesCourt of Appeals for the Fourth Circuit

BRIEF OF NORTH CAROLINA VALUES COALITIONAND THE FAMILY RESEARCH COUNCIL

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

Counsel for Amici Curiae

NO. 16-273

Tami FitzgeraldNorth Carolina Values Coalition9650 Strickland RoadSuite 103-226Raleigh, NC 27615(980) 404-2880tfitzgerald@ncvalues.org

Travis WeberFamily Research Council801 G Street NWWashington, D.C. 20001(202) 637-4617tsw@frc.org

Deborah J. Dewart Counsel of Record620 E. Sabiston DriveSwansboro, NC 28584-9674(910) 326-4554debcpalaw@earthlink.net

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THEARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. THE FOURTH CIRCUIT RULING WOULDALLOW THE FEDERAL GOVERNMENTT O U S U R P S T A T E A N DLOCAL AUTHORITY TO CRAFT PUBLICPOLICY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Education Is Primarily A State And LocalConcern. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The Fourth Circuit Ruling WouldJeopardize The Liberty Of The People ToParticipate In The Political Process. . . . . 6

II. THE FOURTH CIRCUIT RULINGENDORSES COERCIVE ACTIONS THATTHREATEN THE LIBERTY OF LOCALSCHOOL DISTRICTS AND STUDENTS. . . 8

A. The Ruling Would Allow The FederalGovernment To Coerce School DistrictCompliance By Threatening WithdrawalOf Federal Funds. . . . . . . . . . . . . . . . . . . . 9

B. The Ruling Would Allow The FederalGovernment To Coerce Students In AnEnvironment Where Their Attendance IsMandatory. . . . . . . . . . . . . . . . . . . . . . . . 10

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C. The School District Has Not DeniedG.G.’s Liberty To Assume A MaleIdentity. . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. DEFERENCE TO THE FERG-CADIMALETTER WOULD VIOLATE THESEPARATION OF POWERS. . . . . . . . . . . . 14

A. The Fourth Circuit Ruling Would AllowThe Executive Branch To InvadeLegislative Territory Because TheirRecent Interpretation Conflicts WithUnambiguous Language In Both Title IXAnd Its Implementing Regulation. . . . . . 15

B. The Fourth Circuit Ruling Would AllowThe Executive Branch To Usurp JudicialPower To “Say What The Law Is.” . . . . . 18

C. No Reasonable Legislator Would HaveDefined “Sex” As “Gender Identity.” . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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TABLE OF AUTHORITIES

CASES

Auer v. Robbins, 519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . . passim

Barnhart v. Walton, 535 U.S. 212 (2002) . . . . . . . . . . . . . . . . . . . . . . 20

Beard v. Whitmore Lack Sch. Dist., 402 F.3d 598 (6th Cir. 2005) . . . . . . . . . . . . . . . 12

Bd. of Curators of University of Missouri v.Horowitz, 435 U.S. 78 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 6

Bond v. United States, 564 U.S. 211 (2011) . . . . . . . . . . . . . . . . . . . . . . . 7

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) . . . . . . . . . . . . . . . . 18, 19, 22

Bowsher v. Synar, 478 U.S. 714 (1986) . . . . . . . . . . . . . . . . . . . . . . 23

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . passim

Christensen v. Harris Cnty., 529 U.S. 576 (2000) . . . . . . . . . . . . . . . . 16, 17, 25

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) . . . . . . . . . . . . . . . . . 9, 12, 13

Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013) . . . . . . . . . . . . . . . . . . . . 20

Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980) . . . . . . . . . . . . . . . . 12

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Epperson v. Arkansas, 393 U.S. 97 (1968) . . . . . . . . . . . . . . . . . . . . . . . . 6

G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) . . . . . . . . . 17, 21, 22

Gonzales v. Oregon, 546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . 17

Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . 8

Hill v. Colorado, 530 U.S. 703 (2000) . . . . . . . . . . . . . . . . . . . . . . . 8

Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . 11

Lee v. Weisman, 505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . 10, 11

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . 17, 18

Milliken v. Bradley, 418 U.S. 717 (1974) . . . . . . . . . . . . . . . . . . . . . 5, 6

Missouri v. Jenkins, 495 U.S. 33 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 6

National Assn. of Home Builders v. Defenders ofWildlife, 551 U.S. 644 (2007) . . . . . . . . . . . . . . . . . . . . . . 15

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) . . . . . . . . . . . . . . . . passim

Nat’l Labor Relations Bd. v. Noel Canning, et al., 134 S. Ct. 2550 (2014) . . . . . . . . . . . . . . . . . . . . 14

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North Haven Bd. of Ed. v. Bell, 456 U.S. 512 (1982) . . . . . . . . . . . . . . . . . . . . . . 20

Pennhurst State School and Hospital v. Halderman,451 U.S. 1 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199 (2015) . . . . . . . . . . . 18, 22, 23, 25

Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . . . . 5

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009) . . . . . . . . . . . . . . . . . . . . . . 12

Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992) . . . . . . . . . . . . . . 12

Shelby v. Holder, 679 F.3d 848 (D.C. Cir. 2012) . . . . . . . . . . . . . . . 4

Skidmore v. Swift & Co., 323 U.S. 134 (1944) . . . . . . . . . . . . . . . . . . . . . . 25

Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50 (2011) . . . . . . . . . . . . . . . . . . . . . . . 19

Texas v. United States, No. 7:16-CV-00054-O, 2016 U.S. Dist. LEXIS113459 (N.D. Tex. Aug. 21, 2016) . . . . . . . . . 2, 17

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) . . . . . . . . . . . . . . . . . . . 19, 20

Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160 (11th Cir. 2001), vacated on othergrounds by 122 S. Ct. 2653 (2002) . . . . . . . . . . . 12

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Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Lopez, 514 U.S. 549 (1995) . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Mead Corp., 533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . . . . . 16

Univ. of Tex. Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517 (2013) . . . . . . . . . . . . . . . . . . . . 16

Util. Air Reg. Grp. v. EPA, 134 S. Ct. 2427 (2014) . . . . . . . . . . . . . . . . . . . . 15

Watt v. Alaska, 451 U.S. 259 (1981) . . . . . . . . . . . . . . . . . . . . . . 20

CONSTITUTION

U.S. Const., Art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . 14

STATUTES AND REGULATIONS

5 U.S.C. § 553(b)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 25

5 U.S.C.S. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C.F.R. § 106.33 . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21

OTHER AUTHORITIES

Robert A. Anthony, The Supreme Court and theAPA: Sometimes They Just Don’t Get It, 10Admin. L.J. Am. U. 1 (1996) . . . . . . . . . . . . . . . 23

Stephen Breyer, Active Liberty (Vintage Books2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 24, 26

Federalist No. 48 (James Madison) (ClintonRossiter ed., 1961) . . . . . . . . . . . . . . . . . . . . . . . 14

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The Federalist No. 51 . . . . . . . . . . . . . . . . . . . . . . . . 8

Zachary S. Price, Enforcement Discretion andExecutive Duty, 67 Vand. L. Rev. 671 (2014) . . 14

Robert J. Reinstein, The Limits of Executive Power,59 Am U. L. Rev. 259 (2009) . . . . . . . . . . . . . . . 14

U.S. Department of Education, Office for CivilRights, Questions and Answers on Title IX andSexual Violence (Apr. 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Department of Education, Office for CivilRights, Questions and Answers on Title IX andSingle-Sex Elementary and Secondary Classesand Extracurricular Activities (Dec. 2014)http://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf . . . . . . . . . . . . . 2

U.S. Department of Education, Office for CivilRights, Title IX Resource Guide (Apr. 2015),https://www2.ed.gov/about/offices/list/ocr/docs/dcl-title-ix-coordinators-guide-201504.pdf . . . . . 2

United States Reaches Agreement with Arcadia,California, School District to Resolve SexDiscrimination Allegations, U.S. Dep’t ofJustice, July 24, 2013, https://www.justice.gov/opa/pr/united-states-reaches-agreement-arcadia-ca l i f ornia -schoo l -d i s t r i c t - reso lve -sex-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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INTEREST OF AMICI1

North Carolina Values Coalition and The FamilyResearch Council, as amici curiae, respectfully urgethis Court to reverse the Fourth Circuit decision.

The North Carolina Values Coalition (“NCVC”) is anonprofit educational and lobbying organization basedin Raleigh, NC and located within the jurisdiction ofthe Fourth Circuit Court of Appeals that exists toadvance a culture where human life is valued, religiousliberty thrives, and marriage and families flourish.Consequently, NCVC has an interest in ensuring thatNorth Carolina communities are free to enact policiesthat advance these values and preserve privacy. Seewww.ncvalues.org.

The Family Research Council is a non-profitorganization located in Washington, D.C., that exists toadvance faith, family and freedom in public policy andthe culture from a Christian worldview. Consequently,FRC has an interest in ensuring that local communitiesare free to enact policies consistent with thisworldview. See www.frc.org.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

This case implicates sensitive privacy issuesinvolving some of the youngest members of Americansociety. But “[t]he resolution of this difficult policy

1 The parties have consented to the filing of this brief. Amicuscuriae certifies that no counsel for a party authored this brief inwhole or in part and no person or entity, other than amicus, itsmembers, or its counsel, has made a monetary contribution to itspreparation or submission.

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issue is not” the business of this Court. Texas v. UnitedStates, No. 7:16-CV-00054-O, 2016 U.S. Dist. LEXIS113459, *3-4 (N.D. Tex. Aug. 21, 2016). “Instead, theConstitution assigns those policy choices to theappropriate elected and appointed officials, who mustfollow the proper legal procedure.” Id. at *4. TheFourth Circuit decision, and decrees2 from twoexecutive agencies, the Departments of Justice andEducation (collectively “the Departments”), pose

2 The following federal decrees are relevant: The opinion letterdated January 5, 2015 from James A. Ferg-Cadima, Acting DeputyAssistant Secretary for Policy in the Department of Education(“DOE”) Office of Civil Rights (the “Ferg-Cadima Letter”), and the“Dear Colleague” letter dated May 13, 2016 from the Departmentsof Education and Justice to every Title IX-covered educationalinstitution in America (the “Dear Colleague Letter”) (collectively,the “Letters”). Additionally, the DOE has attempted to decree aredefinition of “sex” for schools nationwide in several guidancedocuments published over the last few years, including thefollowing: U.S. Department of Education, Office for Civil Rights,Questions and Answers on Title IX and Sexual Violence, 5 (Apr.2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf; U.S. Department of Education, Office for Civil Rights,Questions and Answers on Title IX and Single-Sex Elementary andSecondary Classes and Extracurricular Activities, 25 (Dec. 2014)http://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf; U.S. Department of Education, Office for CivilRights, Title IX Resource Guide, 1, 15, 16, 19, 21-22 (Apr. 2015),https://www2.ed.gov/about/offices/list/ocr/docs/dcl-title-ix-coordinators-guide-201504.pdf. The DOE and DOJ have alsopreviously pursued litigation under this interpretive theory whichhas resulted in settlements. See United States Reaches Agreementwith Arcadia, California, School District to Resolve SexDiscrimination Allegations, U.S. Dep’t of Justice, July 24, 2013,https://www.justice.gov/opa/pr/united-states-reaches-agreement-arcadia-california-school-district-resolve-sex-discrimination.

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ominous threats to representative democracy andindividual liberty on both vertical and horizontal levels.

Vertically, the Fourth Circuit affirms federaldecrees that remove public education—a matterentrusted primarily to state and localgovernments—from the elected representatives closestto the people and most responsive to their concerns.Individuals are deprived of the liberty to participate ina matter of national importance in the public schoolsthat educate their children. The ultimatums hold a“gun to the head” of local authorities using anunconstitutional threat to withdraw federal fundingfrom those who fail to comply. Nat’l Fed’n of Indep.Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012). Thestates have not explicitly consented to theDepartments’ policy as a condition of funding. Publicschool students, subject to compulsory education laws,are compelled to sacrifice their liberty and reasonableexpectation of privacy on a daily basis. At the sametime, the Gloucester School Board has not denied G.G.the right to receive an education or the liberty toassume a male identity. On the contrary, the Boardsupported and facilitated the transition in everyreasonable manner.

Horizontally, the Fourth Circuit affirms executiveactions that jeopardize the Constitution’s separation ofpowers, not only by issuing mandates that conflict withunambiguous statutory language but also by usurpingjudicial authority to interpret the law. Even under themost generous construction of Auer v. Robbins, 519U.S. 452, 462 (1997), the Fourth Circuit’s extremedeference to the Departments is untenable.

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ARGUMENT

I. THE FOURTH CIRCUIT RULING WOULDALLOW THE FEDERAL GOVERNMENT TOUSURP STATE AND LOCAL AUTHORITYTO CRAFT PUBLIC POLICY.

The executive branch attempted to impose adraconian solution that robs the people of the power togovern themselves and violates the individual libertyof millions of school children. The Departments wouldplace state and local authorities in a straight-jacket,disabling their ability to craft workable policies thataddress the rights and concerns of local citizens. “TheUnited States is a nation built upon principles ofliberty. That liberty means not only freedom fromgovernment coercion but also the freedom toparticipate in the government itself.” Stephen Breyer,Active Liberty (Vintage Books 2006), at 3. Theultimatum jeopardizes both types of liberty, coercingnationwide conformity to a controversial policy anddenying individual liberty—the liberty of adults toparticipate in shaping public policy, and the liberty ofyoung children to maintain bodily privacy. Themandate upends the federalist principles that preservebroad state and local decision-making authority,“secur[ing] decisions that rest on knowledge of localcircumstances, [and] help[ing] to develop a sense ofshared purposes and commitments among localcitizens.” Active Liberty, at 57.

The architects of the Constitution created a federalgovernment “powerful enough to function effectivelyyet limited enough to preserve the hard-earned libertyfought for in the War of Independence.” Shelby v.Holder, 679 F.3d 848, 853 (D.C. Cir. 2012). “[A] group

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of formerly independent states bound themselvestogether under one national government,” delegatingsome of their powers—but not all—to the newly formedfederal administration. Reynolds v. Sims, 377 U.S. 533,574 (1964). Power is divided, not only horizontallyamong the three co-equal branches (Section III), butalso vertically between federal and state governments.This Court has long recognized the critical need topreserve that structure. The Letters not only encroachon legislative and judicial territory, but also invade amatter of intense state and local concern that is notamong the federal government’s enumerated powers.

A. Education Is Primarily A State AndLocal Concern.

Education is among the many powers reserved tothe states and the people, absent a constitutionalrestriction such as equal protection:

[S]tate governments do not need constitutionalauthorization to act. The States thus can and doperform many of the vital functions of moderngovernment—punishing street crime, runningpublic schools, and zoning property fordevelopment, to name but a few—even thoughthe Constitution’s text does not authorize anygovernment to do so.

NFIB, 132 S. Ct. at 2578 (emphasis added).

Local control over public education is “deeplyrooted” in American tradition. Indeed, “local autonomyhas long been thought essential both to themaintenance of community concern and support forpublic schools and to quality of the educationalprocess.” Milliken v. Bradley, 418 U.S. 717, 741-742

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(1974). Judicial restraint should characterize anyfederal attempt to intervene in public education:

Judicial interposition in the operation of thepublic school system of the Nation raisesproblems requiring care and restraint . . . . Byand large, public education in our Nation iscommitted to the control of state and localauthorities.

Epperson v. Arkansas, 393 U.S. 97, 104 (1968). “We seeno reason to intrude on that historic control in thiscase.” Bd. of Curators of University of Missouri v.Horowitz, 435 U.S. 78, 91 (1978) (citing Epperson anddeclining to formalize the academic dismissal processby requiring a hearing); see also United States v. Lopez,514 U.S. 549, 581 (1995) (declining to uphold federalfirearms restriction based on proximity to publicschool). Even where the volatile issue of desegregationis implicated, “local authorities have the primaryresponsibility for elucidating, assessing, and solvingthe problems.” Missouri v. Jenkins, 495 U.S. 33, 51-52(1990) (internal quotation marks and citationsomitted). The same is true here. There is no reason forthe federal judiciary to interfere in local school privacypolicies and shut citizens out of the process.

B. The Fourth Circuit Ruling WouldJeopardize The Liberty Of The PeopleTo Participate In The Political Process.

This case implicates the most sensitive privacyconcerns of young school children. Accommodation ofthose concerns—both for transgender students and allothers—requires compassion and skillful crafting of aworkable policy for each school district. It may require

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construction or remodeling of facilities to implementaccommodations. The federal government hasattempted to dictate a one-size-fits-all “cookie cutter”solution for the entire nation. It is impossible, at thefederal level, to consider the multitude of factors thatmay differ from one school district to another.

Federalism safeguards individual liberty, allowingstates and local communities to “respond to theinitiative of those who seek a voice in shaping thedestiny of their own times without having to rely solelyupon the political processes that control a remotecentral power.” Bond v. United States, 564 U.S. 211,221 (2011). Public school boards illustrate theoutworking of this fundamental principle. Boardmembers are typically selected, often by popularelection, from among local citizens. Parents, teachers,and even students have the opportunity to participatein meetings and express their concerns. If the FourthCircuit decision stands, these voices will be silenced allacross America.

This Court recently reinforced the importance ofmaintaining “the status of the States as independentsovereigns in our federal system . . . [o]therwise thetwo-government system established by the Framerswould give way to a system that vests power in onecentral government, and individual liberty wouldsuffer.” NFIB, 132 S. Ct. at 2602. In short, “federalismprotects the liberty of the individual from arbitrarypower.” Id. at 2578 (internal quotation marks andcitation omitted). It is hard to imagine a more strikinginstance of arbitrary power than this case presents.

The “double security” of American federalism isdeeply rooted in the nation’s history:

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“In the compound republic of America, the powersurrendered by the people is first dividedbetween two distinct governments, and then theportion allotted to each subdivided amongdistinct and separate departments. Hence adouble security arises to the rights of thepeople.” The Federalist No. 51, p. 323.

Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991)(quoting James Madison). The “federalist structure ofjoint sovereigns . . . increases opportunity for citizeninvolvement in democratic processes” (id. at 458) and“frees citizens from restraints that a more distantcentral government might otherwise impose” (ActiveLiberty, 56). The Fourth Circuit forecloses thatopportunity for every citizen, student, and local schoolboard in America.

II. THE FOURTH CIRCUIT RULINGENDORSES COERCIVE ACTIONS THATTHREATEN THE LIBERTY OF LOCALSCHOOL DISTRICTS AND STUDENTS.

The Departments exhibited an unacceptable level ofcoercion toward both local school districts and theiryoung students, cutting off opportunities to voicedisagreement with the federal ultimatum. “Lawspunishing speech which protests the lawfulness ormorality of the government’s own policy are the essenceof the tyrannical power the First Amendment guardsagainst.” Hill v. Colorado, 530 U.S. 703, 769 (2000)(Kennedy, J., dissenting). This is not a case thatpunishes speech per se. But the result is virtuallyidentical. The decrees would crush the ability tomeaningfully disagree with or protest the federalgovernment’s coercive policy. The sensitive issues

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raised by this case should be debated and addressed inlocal communities—but if the mandate stands,discussion will be chilled or at least irrelevant. TheDepartments use the power of the purse, imposingconditions the states neither knew about nor agreed towhen accepting federal funds. The coercive impact onschool children is even more troubling—young citizens,who have no direct voice in the political arena yetsubject to compulsory education laws—are compelled tosacrifice their bodily privacy on a daily basis.

A. The Ruling Would Allow The FederalGovernment To Coerce School DistrictCompliance By Threatening WithdrawalOf Federal Funds.

This Court has “repeatedly treated Title IX aslegislation enacted pursuant to Congress’ authorityunder the Spending Clause.” Davis v. Monroe Cnty. Bd.of Educ., 526 U.S. 629, 640 (1999). But that power, “ifwielded without concern for the federal balance . . .permit[s] the federal government to set policy in themost sensitive areas of traditional state concern, areaswhich otherwise would lie outside its reach.” Id. at 654-655 (Kennedy, J., dissenting). In light of that danger,this Court has consistently held that Congress must“speak with a clear voice.” Pennhurst State School andHospital v. Halderman, 451 U.S. 1, 17 (1981). Anyfunding conditions Congress imposes must be set forth“unambiguously,” and states must “voluntarily andknowingly accept[] the terms.” Id.; see also NFIB, 132S. Ct. at 2602. In NFIB, Congress threatened towithhold existing Medicaid funds from those states thatdeclined to sign up for “the dramatic expansion inhealth care coverage effected by the [Affordable Care]

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Act.” Id. at 2603. This Court, reiterating earlierprecedents, rejected this attempt to impose retroactiveconditions on the states. Id. at 2606.

The same principles apply here. The Ferg-CadimaLetter and the “Dear Colleague” Letter both presumethe term “sex” embraces gender identity. But whenTitle IX was enacted over four decades ago, no statehad explicit notice that it must accept theDepartments’ newly minted definition of “sex” as acondition of receiving funds.

B. The Ruling Would Allow The FederalGovernment To Coerce Students In AnEnvironment Where Their AttendanceIs Mandatory.

The public school is a unique environment. First, itis the place where minor children spend most of theirwaking hours. Second, education is compulsory andmany families have little choice but to place theirchildren in public schools rather than some alternativeeducational setting. Some parents are able to affordprivate school tuition—in addition to the taxes theymust pay to support public education—but manycannot.

As this Court has observed in a different context,“there are heightened concerns with protecting freedomof conscience from subtle coercive pressure in theelementary and secondary public schools.” Lee v.Weisman, 505 U.S. 577, 592 (1992). This case does notinvolve a religious exercise, but it does involve thecoercive environment of the public school system. Thecoercion in this case is even greater. Lee v. Weismaninvolved a one-time event. This case involves daily

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school activities. Lee v. Weisman required students tostand respectfully for a few minutes. This casedemands that children routinely sacrifice their bodilyprivacy, even exposing their unclothed bodies tostudents of the opposite sex, e.g., when changingclothes for physical education. Lee v. Weisman wasabout high school seniors ready to graduate andbecome adults. This case encompasses all elementaryand secondary students—many of them much tooyoung to understand the concept of transgenderism.The coercion is extreme and pervasive. The FourthCircuit’s demands intrude on the basic rights ofchildren:

In our system, state-operated schools may not beenclaves of totalitarianism. School officials donot possess absolute authority over theirstudents. Students in school as well as out ofschool are “persons” under our Constitution.They are possessed of fundamental rights whichthe State must respect, just as they themselvesmust respect their obligations to the State.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.503, 511 (1969). In other contexts, perhaps there is an“emerging awareness that liberty gives substantialprotection to adult persons in deciding how to conducttheir private lives in matters pertaining to sex.”Lawrence v. Texas, 539 U.S. 558, 571-572 (2003)(emphasis added). But here, the federal governmentdemands that children sacrifice bodily privacy in apublic place among other students—including those ofthe opposite biological sex.

Other than citing the very case under considerationby this court, the Letters reference cases involving

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adults—discrimination in employment, credit, andother settings that do not involve minor children. SeeApp. 122a, n. 2; App. 130a, n. 5. “Courts . . . must bearin mind that schools are unlike the adult workplaceand that children may regularly interact in a mannerthat would be unacceptable among adults.” Davis, 526U.S. at 651. Davis was about student-on-student sexualharassment, which can be difficult to distinguish fromtypically immature student behavior. This Court notedthe unique qualities of the school setting, where“students often engage in insults, banter, teasing,shoving, pushing, and gender-specific conduct that isupsetting to the students subjected to it.” Id. at 651-652. In this environment, it is a formula for disaster toadd a federal mandate that children regularly exposetheir unclothed bodies to students of the opposite sex.Not only does this endanger the students who are nottransgendered—it potentially subjects students likeG.G. to “insults, banter, teasing, shoving, pushing”beyond what might otherwise occur. There is nocompelling reason for the federal government tojeopardize the liberty and privacy of youngschoolchildren—rights long recognized by this Courtand many others.3

3 See, e.g., Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.364, 374-375 (2009); Thomas ex rel. Thomas v. Roberts, 261 F.3d1160, 1168 (11th Cir. 2001), vacated on other grounds by 122 S. Ct.2653 (2002); Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir.1992); Beard v. Whitmore Lack Sch. Dist., 402 F.3d 598, 604 (6thCir. 2005); Doe v. Renfrow, 631 F.2d 91, 92–93 (7th Cir. 1980). SeeBrief of Amicus Curiae Students, Parents, Grandparents, andCommunity Members, et al., in Support of Petitioner (urging thisCourt to grant certiorari) for further discussion of these and othercitations concerning students’ rights to bodily privacy.

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C. The School District Has Not DeniedG.G.’s Liberty To Assume A MaleIdentity.

The school board’s conduct falls far short of denyingG.G. either the opportunity to receive an education orthe liberty to assume a male identity. In Davis, thisCourt had to consider whether a fifth grade girl wasthe victim of sexual harassment by a classmate andwhether the school district could be liable under TitleIX as a recipient of federal funds. The Court held thatliability was possible, but “only for harassment that isso severe, pervasive, and objectively offensive that iteffectively bars the victim’s access to an educationalopportunity or benefit.” Davis, 526 U.S. at 633. Here,the school affirmed G.G.’s transition to a male identityand even acquiesced in G.G.’s request to use the boys’restroom. Pet. Op. Br. 11-12. There is no evidence thatG.G. was effectively denied “access to an educationalopportunity or benefit,” or the liberty to continuetransitioning to a male identity, merely because theschool board ultimately had to address andaccommodate the privacy needs of other students. TheFourth Circuit’s position places the school in a Catch-22 where it must either grant the transgenderstudent’s demands, regardless of the impact on otherstudents, or face the loss of federal funding. This casedemonstrates the dilemma: The school acquiesced toG.G.’s request to use the boys’ bathroom, but thataction created acute discomfort for both the boys andgirls, and parental complaints ensued.

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III. DEFERENCE TO THE FERG-CADIMALETTER WOULD VIOLATE THESEPARATION OF POWERS.

Power is of an “encroaching nature” and “ought tobe effectually restrained from passing the limitsassigned to it.” Federalist No. 48, at 305 (JamesMadison) (Clinton Rossiter ed., 1961). In order topreserve liberty and guard against tyranny, thefounders structured the Constitution to allocate poweramong three branches of government. Indeed, “theConstitution’s core, government-structuring provisionsare no less critical to preserving liberty than are thelater adopted provisions of the Bill of Rights.” Nat’lLabor Relations Bd. v. Noel Canning, et al., 134 S. Ct.2550, 2592-2593 (2014).

The legislative branch—not the executive branch—ischarged with making the law. U.S. Const., Art. I, § 1.The executive branch has limited rulemaking authorityin the course of executing the law but lacks authorityto alter the statutory scheme. Yet this branch isperhaps “the most powerful branch of government.”Robert J. Reinstein, The Limits of Executive Power, 59Am U. L. Rev. 259, 265 (2009). Agencies “routinelyestablish policy and even issue binding regulationspursuant to statutes that provide only vague andhighly general guidance regarding Congress’s desiredpolicy.” Zachary S. Price, Enforcement Discretion andExecutive Duty, 67 Vand. L. Rev. 671, 683 (2014). Butthe limits woven into the constitutional fabric must bepreserved:

An agency has no power to “tailor” legislation tobureaucratic policy goals by rewritingunambiguous statutory terms. Agencies exercise

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discretion only in the interstices created bystatutory silence or ambiguity; they must always“give effect to the unambiguously expressedintent of Congress.” National Assn. of HomeBuilders v. Defenders of Wildlife, 551 U.S. 644,665 (2007) (quoting Chevron, 467 U.S. at 843).

Util. Air Reg. Grp. v. EPA, 134 S. Ct. 2427, 2445 (2014)(“UARG”). The Fourth Circuit affirms theDepartments’ attempt to do exactly what they areconstitutionally powerless to do—“tailor” Title IX,contrary to “the unambiguously expressed intent ofCongress,” to impose radical social engineering on theAmerican people without their consent.

A. The Fourth Circuit Ruling Would AllowThe Executive Branch To InvadeLegislative Territory Because TheirRecent Interpretation Conflicts WithUnambiguous Language In Both Title IXAnd Its Implementing Regulation.

Over the years, this Court has developed basicprinciples of judicial deference to executive agencies.The Fourth Circuit disregards those principles bygiving extreme deference to an interpretation thatconflicts with Title IX, C.F.R. § 106.33, and basic logic.Deference to the opinion of a single executive branchofficial on a question of this magnitude flies in the faceof our nation’s constitutional principles.

If a statute is at issue, judicial review first inquiresas to “whether Congress has directly spoken to theprecise question at issue.” Chevron U.S.A., Inc. v. Nat.Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Anagency interpretation “inconsisten[t] with the design

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and structure of the statute as a whole” does not meritdeference. Univ. of Tex. Southwestern Medical Ctr. v.Nassar, 133 S. Ct. 2517, 2529 (2013). Where Congressexpressly or implicitly leaves gaps for an agency to fill,the agency’s “reasonable interpretation” is entitled todeference. Chevron, 467 U.S. at 844. As this Court laterexplained, Chevron deference is appropriate “when itappears that Congress delegated authority to theagency generally to make rules carrying the force oflaw, and that the agency interpretation claimingdeference was promulgated in the exercise of thatauthority.” United States v. Mead Corp., 533 U.S. 218,226-227 (2001). Courts also defer to an agency’s“reasonable interpretation” of an ambiguous statute.Christensen v. Harris Cnty., 529 U.S. 576, 586-587(2000). But here, the word “sex” in Title IX isunambiguous. Title IX was designed to ensure thatwomen had educational opportunities equal to thoseprovided to men. That purpose presupposes twosexes—male and female. Moreover, the school has notdenied G.G. the opportunity to receive an education butrather has made every reasonable effort toaccommodate G.G.’s liberty to make the female-to-maletransition.

The Fourth Circuit, while purporting not to setpolicy because that task is entrusted to the politicalbranches, cemented into law a radically novel policydictated by non-binding agency documentsreinterpreting the unambiguous term “sex” in Title IXand C.F.R. § 106.33:

We conclude that the Department’sinterpretation of its own regulation, § 106.33, asit relates to restroom access by transgender

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individuals, is entitled to Auer deference and isto be accorded controlling weight in this case.

G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 723(4th Cir. 2016). This case highlights Auer’s potential forabuse. Extreme deference grants an agency permission,“under the guise of interpreting a regulation, to createde facto a new regulation.” Christensen, 529 U.S. at588. Addressing issues similar to G. G., a district courtin Texas understood this point: “Permitting thedefinition of sex to be defined in this way would allowDefendants to ‘create [a] de facto new regulation’ byagency action without complying with the properprocedures.” Texas v. United States, 2016 U.S. Dist.LEXIS 113459, *46-47 (citing Christensen). Severalyears ago, this Court declined to defer to the U.S.Attorney General’s interpretive rule that the use ofcontrolled substances to assist suicide—though lawfulunder Oregon state law—was not a “legitimate medicalpractice.” Gonzales v. Oregon, 546 U.S. 243, 248 (2006).Even though the interpretation was admittedlyreasonable, it exceeded the powers the ControlledSubstance Act granted. Id. at 260. The AttorneyGeneral’s argument would have “delegate[d] to a singleexecutive official the power to effect a radical shift ofauthority from the States to the Federal Governmentto define general standards of medical practice in everylocality.” Id. at 275. Similarly, deference to the Ferg-Cadima Letter would effect “a radical shift ofauthority.”

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B. The Fourth Circuit Ruling Would AllowThe Executive Branch To UsurpJudicial Power To “Say What The LawIs.”

“It is emphatically the province and duty of thejudicial department to say what the law is.” Marburyv. Madison, 5 U.S. 137, 178 (1803) (emphasis added).As Justice Thomas warned, Seminal Rock-Auerdeference has generated executive encroachment onjudicial territory:

Because this doctrine effects a transfer of thejudicial power to an executive agency, it raisesconstitutional concerns. This line of precedentsundermines our obligation to provide a judicialcheck on the other branches, and it subjectsregulated parties to precisely the abuses thatthe Framers sought to prevent.

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1213(2015) (Thomas, J., concurring). Bowles v. SeminoleRock & Sand Co., 325 U.S. 410 (1945) (“SeminoleRock”) opened the door to “a doctrine of deference thathas taken on a life of its own.” Id. The executiveintrusion on judicial power erodes the ability of judgesto exercise “independent judgment . . . to decide casesin accordance with the law of the land, not inaccordance with pressures placed upon them througheither internal or external sources.” Perez, 135 S. Ct. at1218 (Thomas, J., concurring). It is ultimately thejudiciary’s responsibility to determine whether aparticular agency interpretation is correct. “Auerdeference is not an inexorable command in all cases.”Id. at 1208 n. 4.

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[T]he reviewing court shall . . . interpretconstitutional and statutory provisions, anddetermine the meaning or applicability of theterms of an agency action.

5 U.S.C.S. § 706. The Fourth Circuit treated Auer as“an inexorable command” by granting extremedeference to an executive agency’s illogical andunworkable interpretation of a straightforward statuteand regulation.

An agency regulation duly adopted according tostatutory authority has the effect of law, and courtsgrant the agency’s interpretation “controlling weightunless it is plainly erroneous or inconsistent with theregulation.” Seminole Rock, 325 U.S. at 413-414; Auer,519 U.S. at 462. But “[a]gencies do not receivedeference where a new interpretation conflicts with aprior interpretation.” Thomas Jefferson Univ. v.Shalala, 512 U.S. 504, 515 (1994). Moreover, “[it]seems contrary to fundamental principles of separationof powers to permit the person who promulgates a lawto interpret it as well.” Talk America, Inc. v. MichiganBell Telephone Co., 564 U.S. 50, 68 (2011) (Scalia, J.,concurring).

While the implication of an agency power toclarify the statute is reasonable enough, there issurely no congressional implication that theagency can resolve ambiguities in its ownregulations. For that would violate afundamental principle of separation ofpowers—that the power to write a law and thepower to interpret it cannot rest in the samehands.

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Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1341(2013) (Scalia, J., dissenting). If an agency has carteblanche to interpret—and later reinterpret—its ownregulations, that agency has arrogated judicialauthority to itself. That is exactly what happened here,in contrast to Auer itself. In Auer, the Fair LaborStandards Act of 1938 (FLSA) granted the executiveagency “broad authority” to define the relevantexemption from overtime pay requirements. Auer, 519U.S. at 456. Congress granted no comparable authorityto define—let alone redefine—the unambiguous term“sex” in Title IX.

The longevity of an agency’s interpretation is arelevant factor though not necessarily conclusive.“Courts will normally accord particular deference to anagency interpretation of longstanding duration. NorthHaven Bd. of Ed. v. Bell, 456 U.S. 512, 522 n. 12(1982).” Barnhart v. Walton, 535 U.S. 212, 220 (2002).Such an interpretation is “more likely to reflect thesingle correct meaning.” Id. at 226 (Scalia, J.,concurring), citing Watt v. Alaska, 451 U.S. 259, 272-273 (1981). The corollary is also true: “[A]n agency’sinterpretation of a . . . regulation that conflicts with aprior interpretation is entitled to considerably lessdeference than a consistently held agency view.”Thomas Jefferson Univ., 512 U.S. at 515 (internalquotation marks and citation omitted). Reading TitleIX together with the regulation expressly permittingsex-segregation in private facilities, it is crystal clearthat both presuppose the objective, biological reality ofa binary system (male and female) in contrast to theasserted interpretation at issue.

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Title IX and its implementing regulation date backover four decades. The Departments’ recentinterpretation conflicts with both. The Fourth Circuitadmitted that “[r]ead plainly . . . § 106.33 permitsschools to provide separate toilet, locker room, andshower facilities for its male and female students.”G. G., 822 F.3d at 720. It requires verbal somersaultsto construe the government’s position as “a permissibleconstruction of the statute.” Auer, 519 U.S. at 457,quoting Chevron, 467 U.S. at 843. Its logicalincoherence reveals it is “plainly erroneous” and“inconsistent with the [implementing] regulation”originally issued. As Judge Niemeyer explains, theterm “sex” must logically mean one of the following nowthat the government has rejected “biological sex” as thesole definition: (1) biological sex and “gender identity”(conjunctive); (2) biological sex or “gender identity”(disjunctive); (3) only “gender identity.” G. G., 822 F.3dat 737 (Niemeyer, J., dissenting). The results exposethe Departments’ flawed reasoning:

(1) “[A] transgender student’s use of a boys’ orgirls’ restroom or locker room could not satisfythe conjunctive criteria . . . such aninterpretation would deny G.G. the right to useeither the boys’ or girls’ restrooms.” Id. The boys’restroom is not consistent with G.G.’s biologicalsex, and the girls’ restroom does not conform toG.G.’s gender identity.

(2) “[T]he School Board’s policy is in compliancebecause it segregates the facilities on the basisof biological sex, a satisfactory component of thedisjunctive.” Id.

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(3) Under this option, “privacy concerns wouldbe left unaddressed.” Id. at 738. Yet it wasexactly those concerns that led to the provisionof sex-segregated facilities in the first place.Indeed, “the whole concept of permissible sex-segregation collapses” (Pet. 35) in view of theextremely subjective standard advanced in the“Dear Colleague Letter.” A student’s mere noticeto the school—with or without parental consent(or even knowledge) or any supportingevidence—obligates the school to allow thatstudent to use the facilities of his or her choice.

According to the Fourth Circuit, the Department ofEducation chose the third option, “determiningmaleness or femaleness with reference to genderidentity.” G. G., 822 F.3d at 720. The implications areastounding. If a transgender person elects to usefacilities corresponding to biological sex rather than“gender identity,” is that permissible? If so,transgender students have the privilege of using therestrooms for either sex—a privilege not granted tonon-transgender persons. Would the school then bediscriminating against non-transgender students? TheDepartment’s interpretation of “sex” is notcoherent—let alone persuasive. Instead of resolving anambiguity in either the statute or regulation, it hascreated one.

One rationale asserted for Seminole Rock (or Auer)deference is that “Congress has delegated to agenciesthe authority to interpret their own regulations.” Perez,135 S. Ct. at 1224 (Thomas, J., concurring). Congresscannot delegate power it does not possess. In ananalogous context, this Court held that Congress

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cannot grant executive power to itself: “The structure ofthe Constitution does not permit Congress to executethe laws; it follows that Congress cannot grant to anofficer under its control what it does not possess.”Bowsher v. Synar, 478 U.S. 714, 726 (1986). Similarly,“the Constitution does not empower Congress to issuea judicially binding interpretation of the Constitutionor its laws. Lacking the power itself, it cannot delegatethat power to an agency.” Perez, 135 S. Ct. at 1224(Thomas, J., concurring).

Both Chevron and Auer presuppose that—under ourconstitutional structure separating legislative,executive, and judicial powers—Congress couldlawfully delegate discretion to executive agencies toresolve statutory ambiguities or fill gaps in the processof executing a statutory scheme. This discretion mustbe exercised within reasonable limits. It is not a licenseto usurp legislative power by using “interpretation” todo an end-run around Congress and turn existing lawon its head. Nor is it a license to encroach on judicialpower by seizing authority to reinterpret its ownregulation, decades later, transforming its meaning sothe original becomes incomprehensible—as the Lettersdid here by redefining “sex” and destroying the privacyrationale underlying the law.

Auer deference invites executive agencies to be“vague in framing regulations, with the plan of issuing‘interpretations’ to create the intended new law withoutobservance of notice and comment procedures.” RobertA. Anthony, The Supreme Court and the APA:Sometimes They Just Don’t Get It, 10 Admin. L.J. Am.U. 1, 11-12 (1996). If the Fourth Circuit decisionstands, agencies have a powerful incentive to frame

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imprecise regulations they can later revise according tothe exigencies and political winds of the day. This is aformula for arbitrary government and tyranny.

Expansive executive discretion also impairs politicalaccountability. By obscuring the lines between thethree branches, executive “lawmaking” andinterpretation generate confusion as to who isresponsible for existing laws and policies. This in turndisrupts the political process at state and local levels,removing matters of local concern from thecommunities most directly impacted and denying thepeople the opportunity to participate in government.This strikes at the heart of representative government.

C. No Reasonable Legislator Would HaveDefined “Sex” As “Gender Identity.”

It is possible—indeed, probable—that no legislatorconsidered how Title IX would apply to transgenderstudents. If Congress had addressed the issue, howwould a “reasonable member of Congress” approachedit? Active Liberty, at 88. The statute was designed toensure equal educational opportunities for men andwomen. That essentially means all persons. Perhaps a“reasonable legislator” would have agreed thattransgender students have the right to receive aneducation. Even so, it surely would have beenunreasonable to disregard the privacy rights of allother students. Here, no transgender student has beenthreatened with expulsion, denied the right to aneducation, or denied access to a bathroom. Moreover,the government’s “solution”—allowing any student touse any bathroom by mere notice to the school of his orher subjective “gender identity”—fails to honor eventhe transgender student’s own privacy. Here, the school

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offered G.G. an accommodation providing a level ofprivacy beyond what most other students experience.Moreover, no matter what private facilities atransgender student uses, it is difficult to imagine thestudent’s transgender status is invisible to othersunless the transition has been completed and thestudent is enrolling in a new school. In this highlysensitive area, the people must have the flexibility tocraft policies and solutions that fit local circumstancesand protect the liberty of all students.

In Auer, this Court extended deference to anagency’s interpretation of its own regulation. But suchdeference is due “only when the language of theregulation is ambiguous.” Christensen, 529 U.S. at 588.Other documents have a weaker claim to deference.Opinion letters such as the Ferg-Cadima Letter “lackthe force of law” and “do not warrant Chevrondeference.” Christensen, 529 U.S. at 587. Interpretiverules, exempt from notice-and-comment requirements(5 U.S.C. § 553(b)(A)), “do not have the force and effectof law and are not accorded that weight in theadjudicatory process.” Perez, 135 S. Ct. at 1204(internal quotation marks and citation omitted). Atmost these are “entitled to respect” provided they havethe “power to persuade.” Skidmore v. Swift & Co., 323U.S. 134, 140 (1944). But—if courts allow an agencyopinion letter to command deference and bind thepublic—that letter essentially has the “force and effectof law.” The people are ruled by a distant centralgovernment without even the benefit of notice-and-comment procedures. That is precisely what the FourthCircuit allowed, creating the opportunity forencroachment on both legislative and judicial power.

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It is highly improbable that a hypothetical“reasonable legislator” would have wanted deference tothe Ferg-Cadima Letter, “given the statutory aims andcircumstances” and the importance of the question.Active Liberty, at 106-107. Agencies might reasonablyfill gaps that occur due to unforeseen circumstances.But this case involves setting aside the time-honoredunderstanding of the word “sex” for a novel definitionthat essentially erases the line between male andfemale. This is an issue of paramount importance thatCongress would have wanted to decide for itself ratherthan defer to a sole executive official’s letter. Deferencemakes no sense here and would deny local communitiesthe liberty to craft practical solutions to importantsocial problems.

CONCLUSION

Amici urge this Court to reverse the Fourth Circuitdecision.

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Respectfully submitted,

Deborah J. Dewart Counsel of Record620 E. Sabiston DriveSwansboro, NC 28584-9674(910) 326-4554debcpalaw@earthlink.net

Tami FitzgeraldNorth Carolina Values Coalition9650 Strickland Road, Suite 103-226 Raleigh, NC 27615(980) 404-2880tfitzgerald@ncvalues.org

Travis Weber Family Research Council 801 G Street NW Washington, D.C. 20001 (202) 637-4617 tsw@frc.org

Counsel for Amici Curiae