All G.G. wanted was to be like other high schoolers, and use the bathroom that corresponds with his gender identity. Yet this small request triggered a high-profile legal battle over the meaning and application of Title IX that may be well on its way to the U.S. Supreme Court. After losing in the U.S. Court of Appeals for the Fourth Circuit, the Gloucester County School Board obtained a stay of the lower court’s judgment from a divided Court. A petition for certiorari is now pending.

Many people may have strong opinions on how (and perhaps even whether) schools and other educational institutions should accommodate transgender students. Yet the ultimate outcome in G.G. v. Gloucester County School Board and other cases challenging the Department of Education’s policy on the accommodation of transgender students may ultimately turn on questions of administrative law – the vitality and application of Seminole Rock/Auer deference in particular. This is because one of the central issues in these cases is whether courts should defer to the Department of Education’s interpretations of its own regulations implementing Title IX, put forward in various letters and guidance documents. The controversy illustrates how Seminole Rock/Auer deference often operates in the real world and the problems it can create.

Some quick background: Under Title IX of the Education Amendments of 1972, all educational associations that receive federal funding from discriminating “on the basis of sex.” This prohibition applies to all fund-recipient operations and facilities. Title IX expressly allows for the maintenance of single-sex living facilities, such as dormitories, bathrooms, and the like. Perhaps because questions of gender identity were not particularly salient at the time, Title IX does not define the term “sex.”

After Title IX’s enactment, the U.S. Department of Education promulgated regulations to implement the statutory prohibition. One regulation of particular relevance provides that : “A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” Like the statute, however, the Education Department’s regulations do not define the term “sex.”

Some decades after these regulations were adopted, the Department of Education concluded that Title IX imposes obligations on educational institutions with regard to transgender students. The problem, however, is that neither Title IX nor the Department’s regulations address the issue. There are serious arguments that the prohibition on sex discrimination should be applied so as to take account of an individual’s gender identity, as opposed to that individual’s biological sex at birth, and that such a determination would be eligible for Chevron deference, but the Education Department has never issued a regulation to that effect. Thus, while Title IX and its implementing regulations prohibit sex-based discrimination, they leave unanswered how a student’s sex is to be determined and when a failure to treat a student based upon the student’s self-professed gender identity may constitute such discrimination.

In recent years, controversies have emerged concerning whether and how primary and secondary schools should accommodate transgender students. Rather than address this question through regulations – which would require going through a lengthy (and likely controversial) notice-and-comment rulemaking – the Education Department simply declared in letters and guidance documents that the federal prohibition “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” The Department further declared that it treats “a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” and that, as a consequence “a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” In the Department’s view, Title IX and its regulations require that once a student’s parent or guardian “notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.”

As the relevant guidance documents (and court filings) make clear, the Department is trying to have its cake and eat it too – and Seminole Rock/Auer deference provides it with that opportunity. The Department wants deference for its interpretations without having to go through the time and effort of a rulemaking. Not only would such an effort consume agency resources and potentially court controversy, it would result in a final agency action – a final rule – that would be a ready target for litigation. Seminole Rock/Auer to the rescue.

In court proceedings, the Department has argued – and the U.S. Court of Appeals for the Fourth Circuit accepted – that courts must defer to the Department’s interpretation of its regulations under Auer and Seminole Rock. According to the Fourth Circuit’s opinion in the Gloucester County case:

Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with deference to gender identity

Concluding that “the regulation is ambiguous as applied to transgender individuals,” the Fourth Circuit concluded that it must defer to the Department’s interpretation under Auer and Seminole Rock.

Whether or not one believes this is how Title IX should be applied, deference to the agency’s interpretation in this case is highly problematic. For starters, the relevant ambiguity exists in the underlying statutory language as well. This matters. In Gonzales v. Oregon, the Supreme Court explained that agencies should not get Seminole Rock/Auer deference where agency regulations reiterate the relevant statutory language, thereby importing a statutory ambiguity into the agency’s regulations. In such cases, agency interpretations of their own regulations are, for all practical purposes, interpretations of the statute, and are therefore only eligible for deference under Chevron—and Chevron (as explicated in Mead) requires an agency to do more than issue a guidance letter or file a brief.

A second problem is that such use of Seminole Rock/Auer deference enables agencies to alter longstanding interpretations and understandings of relevant legal requirements without going through the rulemaking process. In the case at hand, this enables the agency to sidestep difficult questions, such as how to balance accommodation of gender identity with concerns for privacy and modesty and whether schools may require a gender dysphoria diagnosis before providing an accommodation (as is often requirement before providing accommodations for certain disabilities), and so on. In the context of Title IX, it may also give the Education Department a new means of circumventing the clear notice requirements for conditions placed on federal grants to states.

This controversy highlights Seminole Rock/Auer deference’s uneasy fit with Chevron. As post-Chevron cases have made clear, Chevron deference is premised upon a theory of delegation. Statutory gaps and ambiguities are understood to represent implicit delegations of authority from the legislature to the agency. When agencies promulgate ambiguous regulations, however, they cannot be said to be delegating anything to themselves.

Insofar as Title IX is ambiguous, Chevron provides that Congress has delegated authority to the Education Department to fill in the details and clarify grant recipient obligations. Chevron and its progeny further make clear that such gap-filling and clarification is to come in the form of regulations or other agency actions that have the force of law – and not in the form of guidance letters or legal advocacy. So to grant Seminole Rock/Auer deference to the Education Department’s guidances and letters here allows the Department to exercise its delegated power without having to fulfill the procedural requirements that ensure greater transparency and accountability in the exercise of such power. And if agencies are given this sort of opportunity to circumvent Chevron’s requirements, we should expect them to act accordingly.

As a policy matter, the Education Department may well be correct. Nothing in this essay should be read to suggest that Title IX cannot or should not be interpreted and applied as the Education Department insists. But for Title IX to be applied and enforced as the Education Department insists, it must promulgate an interpretation worthy of judicial deference – and any such interpretation must be adopted in the usual course and through the proper procedures. Yet so long as Seminole Rock/Auer deference remains on the table, there is little reason for the Education Department to make such an effort.

Seminole Rock/Auer deference may seem like a simple extension of Chevron that accounts for the complexity and latent ambiguity of agency rules. In practice, however, it provides a means for agencies to circumvent Chevron’s requirements and its rationale. In the real world, Seminole Rock/Auer deference gives agencies a means to seek the benefits of regulatory interpretations without any of the burdens.

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. His latest book is Business and the Roberts Court (Oxford, 2016).

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This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.