I read the ruling in the Gavin Grimm case and what I got out of it was that the Court of Appeals deferred to the Department of Education's interpretation of title IX. I.e. the deciding factor was that USDE favored the interpretation that single-sex restrooms are used based on gender identity.

A question to the legal eagles here at Susan's: What would happen if a later administration reversed this interpretation and decreed that body sex was now the deciding factor and not gender identity? Would that change the implications of the ruling on students' bathroom rights?

Given the stance taken on this issue by some of the presidential candidates, and the fact that the USDE works under the president, this is obvious not a moot question.

I'm no attorney, but I have paid a lot of attention to this.  The DOE interpretation is not statute, but agency guidance.  Federal courts normally presume that they should accord substantial deference to the interpretation of a statute by the agency authorized to administer or enforce the statute.  (So the Treasury Department is given deference to its interpretation of federal banking guidelines, the National Labor Relations Board is given deference to its guidance on labor law, etc.)

This is the basis of the ruling on Gavin Grimm's Title IX claim: Although the statute itself doesn't specifically address transgender use of restrooms in schools, DOE is the lead agency entrusted with Title IX administration, so its guidance on the issue is entitled to deference by the court.

Your misgivings are well founded.  Ted Cruz is a strident opponent of transgender rights.  In the last few days he referred to TG people as "repulsive perverts and criminals" in an interview about bathroom issues with right-wing commentator Glenn Beck.  Here's the link, if you would like to review it:

http://thehill.com/blogs/blog-briefing-room/news/277122-cruz-slams-transgender-bathroom-controversy

So if Ted Cruz is elected President, he will appoint a new Secretary of Education with views similar to his own.  Eventually, the DOE Title IX guidance will be brought into line with his views.  At that point, the policy of deference in the federal courts will spin around like a weathervane and point in the opposite direction.  You can imagine the outcome.

On the other hand, if Donald Trump is elected, things will go in an entirely different direction.  Although Trump has spoken with less hatred about the bathroom issue, he has pledged to abolish the Department of Education entirely.  No more DOE?  Then no more DOE guidance!  At that point, the federal courts have no agency guidance to which they owe deference.  How they rule at that point is anyone's guess.

This is just one of many issues that will be decided by the outcome of the November election.  The choices are pretty stark for TG folks.

Title IX is essentially an Act of Congress passed in 1972, as a follow up to the Civil Rights Act of 1964.  In terms of "interpretation,"  interpreting laws is the role of the courts  (not the role of elected officials as Ted Cruz implies).

Courts traditionally interpret laws by examining legislative intent -- the intent of the legislative body that passed the law, not the body that is currently sitting.  Regardless of the source of the Fourth Circuit interpretation, its interpretation is legally binding on all lesser courts within its jurisdictional area. 

The only way for the matter to go to the Supreme Court is by writ of certiorari, and unless the Supreme Court sees a conflict between the circuits, it will deny certiorari and let the ruling stand.

Which means that the religious nuts are going to have to try to get a circuit level ruling in their favor out of another circuit.  Their best hope of doing this is out of the Fifth Circuit, since it is traditionally conservative and Mississippi already has a law in place, or the Sixth Circuit, which is why they are pushing so hard for discriminatory laws in Tennessee.  They already failed in Georgia, and Florida and Alabama have too strong military and business communities, so I doubt we will see any fights like this in the Eleventh Circuit. 

The Ninth and Tenth Circuits in the west are traditionally liberal, as are the First, Second and Third Circuits in the northeast.

This leaves the Eighth Circuit as their only remaining road to the Supreme Court, which is why they are fighting for discriminatory laws in Arkansas, Missouri, Minnesota and the Dakotas.

Aside from judicial interpretation, the only other way for the Religicans to topple or rewrite Title IX is through another Act of Congress -- which is why we should all be watching the next election very carefully.  Trump tells people what they want to hear, which means he will follow the majority in Congress if he is elected. We know what Cruz will do.

I pray for a democratic win, not only for the White House, but for a majority in Congress as well.

Quote from: CarlyMcx on April 22, 2016, 03:07:15 PM
Aside from judicial interpretation, the only other way for the Religicans to topple or rewrite Title IX is through another Act of Congress

Yes, true.

But suppose a hostile (to us) White House directs its Dept. Of Ed. to reinterpret Title IX to mean that trans people are to use the restroom corresponding to sex at birth. The Grimm decision makes clear that the wording is ambiguous and open to the Dept. of Ed's interpretation and further, that the Dept. Of Ed's interpretation should be given deference.

Wouldn't that mean that the Grimm ruling no longer protected transgender bathroom use?