- Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought and;
- Whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
In their merits briefs, petitioner and respondent both urge the Court, regardless of how it resolves Question One, to resolve the second question presented and determine whether, under “‘the proper interpretation of Title IX and its implementing regulation,’” Pet. Br. 25 (quoting Pet. Reply 1), respondent has stated a claim upon which relief may be granted. See Pet. Br. 25; Resp. Br. 26. That question has been litigated widely in the lower courts; it is fairly encompassed in petitioner’s second question presented; and it has been fully briefed before this Court.In other words, both sides were asking the Court to answer the second question. However, since ED no longer interprets Title IX to include transgender students as protected by prohibitions on sex discrimination, the question became invalid.
The Fourth Circuit will now reconsider the case in light of the new guidance and probably reject the appeal. I suspect that a new case is going to have to make its way through the courts; perhaps one that will sue the Department of Education for not applying Title IX to transgender students.