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SECTION No. 16-273 In the Supreme Court of the United States GLOUCESTER COUNTY SCHOOL BOARD, Petitioner, v. G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM, Respondent. ON WRIT OF CERTIORARI TO THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT Brief of Amici Curiae the State of West Virginia, 20 Other States, and the Governors of Kentucky and Maine Supporting Petitioner OFFICE OF THE ATTORNEY GENERAL State Capitol Building 1, Room E-26 Charleston, WV 25305 Elbert.Lin@wvago.gov (304) PATRICK MORRISEY Attorney General ELBERT LIN Solicitor General Counsel of Record THOMAS M. JOHNSON, JR. Deputy Solicitor General JULIE MARIE BLAKE Assistant Attorney General Counsel for Amicus Curiae State of West Virginia TABLE OF CONTENTS TABLE OF CONTENTS............................................. i TABLE OF AUTHORITIES...................................... iii INTRODUCTION AND INTEREST OF SUMMARY OF ARGUMENT I. The Spending Clause Prohibits The New Condition That Respondents and The Department Seek To Read Into Title IX. A. Congress Must Provide Adequate Notice Of All Conditions Attached To Federal Funds In The Text Of A Statute Enacted Under The Spending Clause. B. Title IX Does Not Provide Sufficiently Clear Notice That States Must Give Students Restroom Access Consistent With Their Gender Identity. C. Were This Court To Expansively Interpret Title IX, States Would Be Unconstitutionally Coerced Into Accepting New Grant Conditions Long After the Receipt of Funds. II. Auer Deference Has No Application In This Case. A. Because Statutes Enacted Under The Spending Clause Must Clearly Articulate The States’ Obligations, Agencies Cannot Receive Controlling Deference For Interpretations of Their Own Rules. ii B. This Court Need Not Address Whether Any Other Controlling Deference Is Appropriate In Spending Clause CONCLUSION COUNSEL FOR ADDITIONAL AMICI iii TABLE OF AUTHORITIES CASES Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 23–24 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 Auer v. Robbins, 519 U.S. 452 passim Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656 25 Bond v. United States, 134 S. Ct. 2077 12, 14, 24 Bond v. United States, 564 U.S. 211 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 30 Cannon v. University of Chicago, 441 U.S. 677 Carcaño v. McCrory, No. 1 2016 WL (M.D.N.C. Aug. 26, Carcieri v. Salazar, 555 U.S. 379 Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 (6th Cir. Caterpillar Inc. v. Lewis, 519 U.S. 61 Cedar Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66 iv Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 Com. of Va., Dep’t of Educ. v. Riley, 106 F.3d Cir. 31 Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629 21, 25 Dellmuth v. Muth, 491 U.S. 223 Doe v. Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200, 115 F.3d 1273 (7th Cir. EEOC v. FLRA, 476 U.S. 19 Franciscan Alliance v. Burwell, No. 7 (N.D. Tex. Dec. 31, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 16, 18, 21 Geier v. Am. Honda Motor Co., 529 U.S. 861 Gregory v. Ashcroft, 501 U.S. 452 23–24, 29, 31 Harris v. James, 127 F.3d 993 (11th Cir. Honig v. Doe, 484 U.S. 305 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 Milliken v. Bradley, 418 U.S. 717 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 v Nelson v. Adams USA, Inc., 529 U.S. 460 New York v. United States, 505 U.S. 144 26 North Haven Board of Education v. Bell, 456 U.S. 512 (1982) Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267 Ohio v. Robinette, 519 U.S. 33 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 4, 8, 12–13, 18–19, 22, 24 Perrin v. United States, 444 U.S. 37 Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.

Summary: 


In 2015, a transgender boy filed a lawsuit against his school district because they would not allow him to use the boys' bathroom. The court granted the school district's motion to dismiss, but the appeals court reversed and remanded, and the district court has since granted a preliminary injunction allowing plaintiff access to the boy's bathroom. The Supreme Court agreed to hear the school district's appeal in 2016, but later remanded the case after the Department of Education and Department of Justice withdrew their prior guidance on the issue. The case was remanded to the district court to determine whether the plaintiff's graduation from high school rendered the case moot. On May 22, 2018, the district court denied the defendant’s motion to dismiss. The plaintiff filed a second amended complaint on February 15, 2019, and a motion for summary judgment on March 26, 2019. On August 9, 2019, the court granted the summary judgment; the defendant appealed the case. The case is ongoing.

