Brief of Gail Heriot and Peter N. Kirsanow, Members of the U.S. Commission on Civil Rights in Their Capacities as Private Citizens as Amici Curiae in Support of Petitioner in Gloucester County School Bd. v. G.G. (Merits Stage)

40 Pages Posted: 1 Feb 2017 Last revised: 2 Feb 2017

See all articles by Gail L. Heriot

Gail L. Heriot

University of San Diego School of Law

Peter Kirsanow

Independent

Date Written: 2016

Abstract

This amicus curiae brief was submitted in Gloucester County School Board v. G.G. -- the case concerning the U.S. Department of Education's transgender locker room policy. It argues that (1) Under Gonzales v. Oregon, the Department of Education is not entitled to Auer v. Robbins deference, since interpreting its rule necessarily interprets Title IX itself; (2) No matter what level of deference is employed, the Department of Education's interpretation of Title IX and its rule is implausible; (3) Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, Inc. are inapplicable to cases in which separation by sex is explicitly authorized by regulation; (4) This is not a matter of allowing the Department of Education to clarify who is male and who is female; (5) The Department of Education's one-size-fits-all diktat ties the hands of school administrators who otherwise would have options in ensuring that transgender students as well as other students are treated fairly and compassionately; (6) If the Department of Education's policy accurately reflect the law, its implications will extend very far; (7) This case has captured the public's attention as a symbol of the rule of law's decline; vindicating the rule of law is thus important to the health of our legal system.

Keywords: Title IX, Transgender, Department of Education, Supreme Court, Gloucester County School Board v. G.G., Toilets, Locker Rooms, Showers, Sex Discrimination, Auer v. Robbins

JEL Classification: A00, A10, K10

Suggested Citation

Heriot, Gail L. and Kirsanow, Peter, Brief of Gail Heriot and Peter N. Kirsanow, Members of the U.S. Commission on Civil Rights in Their Capacities as Private Citizens as Amici Curiae in Support of Petitioner in Gloucester County School Bd. v. G.G. (Merits Stage) (2016). San Diego Legal Studies Paper No. 17-253. Available at SSRN: https://ssrn.com/abstract=2908352 or http://dx.doi.org/10.2139/ssrn.2908352

Gail L. Heriot (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Peter Kirsanow

Independent

No Address Available

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