By M Moore*
During its upcoming term, the Supreme Court of the United States will hear arguments on Gloucester County School Board v. G.G. The case concerns the right of a transgender boy to use the boys’ bathroom at his school and has attracted significant media attention as a prominent transgender and civil rights case. But the case has broader implications outside the battle for transgender rights. Petitioner, the Gloucester County School Board, is also seeking to challenge the holding of Auer v. Robbins, a 1997 Supreme Court decision that held that courts should give deference to agencies’ interpretations of their own rules.
Auer v. Robbins involved a group of St. Louis police sergeants and a lieutenant suing their police commissioners’ board for lost overtime wages. The commissioners’ board, as defendants, pointed out that that plaintiffs were exempt from overtime pay under the Secretary of Labor’s interpretation of the Fair Labor Standards Act of 1938 (FLSA). The Secretary of Labor provided the court with an opinion on this specific case by filing an amicus brief with the court ahead of the hearing. Under that interpretation, the Secretary of Labor used a “salary-basis test” in order to decide whether should be provided overtime pay. The test, as interpreted by the Secretary, generally held that employees paid a regular salary were exempt from the overtime pay requirements of the FLSA. The Secretary of Labor provided the court with an amicus brief specifically regarding the application of the “salary-basis test” in the Auer case. Plaintiffs argued, among other contentions, that the Secretary improperly applied the test and that the Secretary providing his judgment through an amicus brief was inappropriate.
The court rejected both of those arguments, holding that the FLSA charged the Secretary of Labor with making this judgment call and that the Secretary’s call was not unreasonable given the language of the FLSA. Since the “salary-basis test” was, in fact, created by the Secretary of Labor to aid in applying rules under the FLSA, his interpretation of that test is binding unless clearly incorrect. The court also found no issue with the Secretary providing his interpretation through a brief with the court (as opposed to a more broadly-issued announcement or regulation), since that interpretation was consistent agency’s judgment as applied in other cases. The ruling in Auer strengthened the ability of agencies to enforce their own regulations and limited the ability of the judiciary to interfere with an agency’s interpretation.
Gloucester began when the plaintiff, G.G., a then-sophomore at a Virginia high school asked for and received permission from his principal to use the boys’ restrooms at his school. After several weeks (and complaints from other parents in the school district), the Gloucester County School Board intervened, implementing a policy preventing transgender students from using bathroom facilities that match their identified gender. G.G. subsequently filed suit against the school board, claiming violation of his Title IX rights. Title IX is a federal civil rights law that protect students from discrimination on the basis of their sex. In support of this suit, plaintiff has relied on an unpublished opinion letter by the Department of Education which instructs schools, broadly, to treat transgender students corresponding to their gender identity.
Since the matter involves an agency’s interpretation of how to enforce the law, plaintiff argues, this action falls within the Auer standard and the United States Department of Education’s interpretation should be binding on the Gloucester County School Board. This argument (among others) convinced the Fourth Circuit to rule in favor of the plaintiff; the Gloucester County School Boarddirectly addressed Auer in supporting materials for its request for a writ of certiorari.
In those materials, the defendants argue first that Auer should be reconsidered, before even addressing the substantive Title IX claims that have attracted the bulk of media attention. Beyond the challenge to Auer generally, the defendants asked the court to rule on two more issues – the applicability of an informal agency letter under Auer and, regardless of Auer, whether the Department of Education’s interpretation of Title IX should be upheld.
The Supreme Court is by no means compelled to rule on the legitimacy of Auer as a whole. In fact, in granting certiorari, they declined to address the complete validity of Auer. They did, however, take up the other two issues the defense raised, indicating some amount of openness to curtailing Auer’s broad grant of agency interpretation. While it remains to be see if (and how) the court will change Auer’s position of broad and flexible agency deference, the impact on agencies’ ability to interpret issues on a case-specific basis could be substantial.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
*M Moore is a Junior Editor on MJEAL. He can be reached at email@example.com.
 Adam Liptak, Supreme Court to Rule in Transgender Access Case, N.Y. Times, Oct. 28, 2016.
 Auer v. Robbins, 519 U.S. 452, (1997).
 Id. at 452.
 Id. at 462.
 Id. at 457.
 Id. at 459.
 Id. at 462.
 G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709, (4th Cir. 2016).
 Id. at 716.
 Id. at 717.
 Id. at 719.
 Id. at 719.
 Id. at 726.
 Petition for Writ of Certiorari, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. filed Aug. 29, 2016).
 Gloucester Cty. Sch. Bd. v. G.G., 85 U.S.L.W. 3208, (2016).