Last week the Supreme Court announced it will review the G.G. v. Gloucester County School Board (VA) decision–a case dealing with who gets to use what bathroom in a local high school.  The Fourth Circuit Court of Appeals ruled 2-1 that for purposes of Title IX’s prohibition of sex discrimination, a student’s self-designated gender identity is determinative of the choice of bathroom, not biological sex.

The court granted review of two questions:  (1) If [the doctrine of Auer deference] is retained, should deference extend to an unpublished agency [U.S. Department of Education] letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? (2) With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. 106.33 be given effect?

Both school districts and the higher ed sector deserve a clear, unequivocal answer from the court on what the word “sex” does and does not mean for purposes of Title IX analysis.

Meanwhile on other matters, stay tuned in coming days for a multi-part series on the Department’s new, broad-sweeping borrower defense (to repayment of student loans) regulations.