Beware The Dictum: The 4th Circuit’s Discovery Of The Meaning Of Sex

Obiter Dictum

  • a judge’s incidental expression of opinion, not essential to the decision and not establishing precedent.

Lawyers are taught to distinguish the holding from the dictum, but we don’t do a particularly good job of it. Judges, who once limited their opinions to the essentials, now write at obscene length, because they too have discovered the joys of word processing, to express their every thought on an issue, their deepest views, despite there being neither need nor call for it.

As the standard example goes, the monumental decision in Brown v. Board of Education took twelve pages to express. The Fourth Circuit’s opinion in G.G. v. Gloucester School Board runs 69 pages. Its holding can be simply stated: The District Court failed to give proper deference to the Department of Education, Office of Civil Rights, interpretation of its regulations, so the case is remanded to the lower court for consideration under the proper standards.

In other words, the decision did little more than to tell the judge below to take a Mulligan under Auer v. Robbins:

Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.  Agency interpretations need not be well-settled or long-standing to be entitled to deference. They must, however, “reflect the agency’s fair and considered judgment on the matter in question.”

In other words, the court below failed to show sufficient deference to OCR’s interpretation of its authority under Title IX.  The “agency interpretation” at issue is a document, self-described as “significant guidance,” by OCR boss Catherine Lhamon, followed up by another Lhamon missive instructing:

“When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.”

There is no ambiguity that Title IX allows schools to have separate bathrooms for male and female students. There is no ambiguity that Title IX prohibits education benefits denied on the basis of “sex,” which was used in lieu of gender at the time of enactment.  The Fourth Circuit majority opinion had little difficulty understanding that the definition of sex meant gender, as it’s used today, what we refer to as the binary definition of male and female, but chose nonetheless to infuse the 36-page majority opinion, written by Judge Henry Franklin Floyd, with, well, opinion.

It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge. We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

In dissent, Judge Paul V. Neimeyer didn’t share Judge Floyd’s definitional confusion as to the meaning of “sex” and the ambiguity of there being no particulars in Title IX about what to do with transgender students.

To accomplish its goal, the majority relies entirely on a 2015 letter sent by the Department of Education’s Office for Civil Rights to G.G., in which the Office for Civil Rights stated, “When a school elects to separate or treat students differently on the basis of sex [when providing restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes], a school generally must treat transgender students consistent with their gender identity.” (Emphasis added). Accepting that new definition of the statutory term “sex,” the majority’s opinion, for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex.

He’s not buying.

This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. And, unwittingly, it also tramples on the very concerns expressed by G.G., who said that he should not be forced to go to the girls’ restrooms because of the “severe psychological distress” it would inflict on him and because female students had “reacted negatively” to his presence in girls’ restrooms.

But is Judge Neimeyer right? Was that the circuit panel’s holding, or is that just, like, Judge Floyd’s opinion, man?  As it turns out, there is actual law addressing the definitional aspect of “sex.”

Remember Justice Ginsburg writing for the Court in United States v. Virginia (1996) in which the Court struck down the historic male-only admissions policy of Virginia Military Institute:  “Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” And Justice Kennedy writing for the Court in Nguyen v. INS (2001), upholding the INS’ differential treatment of American mothers and fathers in their children’s citizenship proceedings: “To fail to acknowledge even our most basic biological differences…risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real.”

For sex discrimination law to serve its function–for the rule of law to govern–sex as a legal term has to mean something in particular.

Much has been made of this Fourth Circuit opinion, particularly in light of North Carolina’s coincidental foray into the issue, where it’s claimed that the deal is done, Lhamon wins, so get over it.

This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.

Judge Neimeyer is mistaken. This is not the court’s holding, but dictum. As reversal was based on the holding that the judge below failed to properly apply Auer, the case was remanded for proper application of the standard of deference. After all, shouldn’t deference to Catherine Lhamon rule the lives of every student in America?  But only after a decision is made on remand, applying the Auer test, does the Circuit get to decide whether it was applied properly. Until then, it’s mere dictum.

In the meantime, it would be nice if there were a political decision of whether “sex” as used in Title IX means whatever Catherine Lhamon wants it to mean, since the judicial branch of government will defer to the political will of one person.  And if Congress can’t be bothered to deal with Lhamon’s recreation of Title IX in her peculiar image, then perhaps the legislative branch of government is telling us that whatever Lhamon decides is cool with them.


9 thoughts on “Beware The Dictum: The 4th Circuit’s Discovery Of The Meaning Of Sex

  1. Richard G. Kopf


    I used to write long opinion (479 pages plus attachments in one case). My excuse was that I was dumb. Writing helped me think less incoherently. Then I realized how stupid I was to inflict my stupid on others.

    I try to be less stupid now, although terminal dumb can’t really be changed. It is a conundrum. I wish I knew what that word meant, but I read it somewhere in a very long opinion by a really smart judge. Having used the word “conundrum,” and not knowing the meaning of the word, I wonder whether a trigger warning is necessary. I don’t know. Some things are inexplicable, but I don’t understand that word either.

    All the best.


      1. John Barleycorn

        It’s cool with them legi-bots and as an additional added bonus “The United States never pay costs.*”.

        *One of the shortest supreme opinions I do believe. And simple “hell no” would have sufficed.

        P.S. There is a “lawyers are full of shit and the judge insisted on describing the wipe” bathroom joke floating around in here some where.

    1. MonitorsMost

      Judge Kopf,
      If I recall correctly, you apologized in the opinion for its length, thus adding an additional 1/3 of a page.

  2. Franklin Michaels

    On the approach of the 4th Circuit’s majority, Andrew Miltenberg’s complaint in Colorado includes the argument that the Dear Colleague Letter shouldn’t be entitled to agency deference where it reversed the DOE’s position of 30 years without so much as an explanation, let alone compliance with APA niceties. But coincidentally, 30 years is precisely the period of time in which the issue of an agency’s reversal of it’s prior position was argued before the Supreme Court earlier this week in Encino Motorcars v. Navarro.

    So unless I egregiously misread, this part of the discussion might very well be resolved by the end of June. TBD.

    1. SHG Post author

      There are similarities, but there are also huge differences. In Encino Motorcars v. Navarro, when went through the requisite notice and comment for regulation. Here, they did nothing more than announce a completely different rule (which they call guidance, since it didn’t go through notice and comment) pulled out of their ass.

      1. Franklin Michaels

        Yabut – at least per SCOTUS blog – the Labor Depart change of heart may be in trouble because of the 30 year gap, notwithstanding exercise in notice and comment when it got around to changing it’s mind. So while a victory for government in Encino Motors would likely leave Miltenberg’s APA (and strongest) issues against the validity of The Letter intact, either an outright win for Encino Motors or a remand to consider the effect of the 30 year gap could be somewhere between huge and dispositive for the home team.

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