The argument would have been strident had Hillary Clinton won the election, with the ACLU contending that Title IX’s prohibition against sex discrimination clearly encompassed gender identity. But despite cert granted, and the Fourth Circuit’s deference ruling stayed, in Gloucester County School Board v. G.G., the fragility of bureaucratic law-making was revealed by Clinton’s loss. Will Trump’s Department of Education rescind Katherine Lhamon’s social engineering?
Harvard lawprof, Jeannie Suk, who has tried hard to be a rational voice for progressive causes, and suffered the denigration of those for whom anything short of blind adherence to the orthodoxy is an outrage, explains the problem and the pivot in the transgender position.
President Obama’s mantra for the past year has been that Congress is broken, so the executive will act. And now, as the stage is set for the new executive, it is dawning on Democrats that living by that sword may mean dying by it. A President can unilaterally revoke prior Presidents’ unilateral actions, and we may soon see just that, in response to Obama’s moves on immigration, climate change, and gun control.
Among the myriad areas subject to upheaval is the President’s administration of Title IX, the 1972 law that prohibits schools that receive federal funding from discriminating “on the basis of sex.” The civil-rights statute has been the primary federal guarantee of equality in educational opportunity for male and female students. This Administration has raised Title IX’s profile by directing schools to take certain actions regarding sexual violence and transgender students, or risk being defunded.
The setup, sword metaphor included, shows two problems, even though Suk only mentions one. Not only was unilateral executive action exposed to unilateral reversal when a new kid takes control, but it does not reflect the deliberative decision of lawmakers that this is the path a nation should take, but only the radical agenda of a bureaucrat. It’s not that we don’t love a dictator, but that we save our love for the dictator who dictates what we want her to dictate.
One of the lead attorneys, Joshua Block, of the American Civil Liberties Union, told me that the brief for Grimm to be filed in January will urge the Court to put aside the question of deference to the agency, because even without it transgender students’ right to use bathrooms matching their gender identity “is the only interpretation consistent with the statute,” Title IX. But to the extent that the Court does find ambiguity in the term “sex” in Title IX or the regulation, he said, he will advocate for deference to the Obama Administration’s interpretation.
The Fourth Circuit’s decision relied on deference to the DoE Office of Civil Rights’ “guidance” that reinterpreted the meaning of “sex discrimination” to encompass gender identity under Auer deference, the contention being that the definition of “sex” has morphed from its clarity at the time Congress enacted Title IX, meaning the binary “male” and “female,” to the current fluid use of whatever anybody wants it to mean at any given moment.
And it’s worthy of note that while Suk, like pretty much everyone else who considers this matter, characterizes the issue as the “right to use bathrooms,” it’s a grossly inaccurate limitation. It’s not just about bathrooms, but explicitly locker rooms and dorms. Implicitly, if the Court holds that discrimination based on gender identity is prohibited by Title IX, it will then slide down the slippery slope to all aspects of campus life. If a male student refuses to date a transgender female student, has he created a hostile educational environment because of his discrimination against transgender students? At this point, it could flow anywhere once the foundation is established.
Had Obama’s O.C.R. employed the more onerous procedures, involving public notice and opportunity to comment, that are required to enact a proper legal regulation, its policy would be difficult to dislodge; the new Administration would have to invest in similarly costly and time-consuming procedures to get rid of it. Block noted, “There’s no question that, as a practical matter, regulations protect people more than guidance does.” What’s more, this Administration’s method of threatening to enforce guidance documents as if they were rules is now laid out and ready-made for Trump’s Administration to deploy at will. The President-elect himself has not taken a clear position against transgender access to bathrooms, but his agencies may. One can only hope that his O.C.R. won’t go so far as to take the view that Title IX not only permits but requires schools to treat transgender students according to their sex assigned at birth.
It’s rather disingenuous to be critical of the Obama administration’s “threatening to enforce guidance,” given that he pounded the virtues of Lhamon’s Dear Colleague letters unmercifully before Trump’s election. They were the greatest thing since sliced bread, as long as they furthered his agenda. Now that they’re exposed to rescission, they did it all wrong? Block is well aware that Congress has refused to do what Lhamon did unilaterally. Had she not issued her “guidance,” he would have nothing at all to argue.
But he’s right that it remains unclear what the new administration will do. The incoming president has given no indication where he stands on the issue, and he’s not exactly a principled thinker. It’s quite possible that neither he, nor whoever sits in the bureaucrat’s chair, will rescind the guidance. It’s quite possible that there will be no dueling guidance, and that Lhamon’s radical shift will remain intact.
But that won’t solve much of anything.
If the Supreme Court finds the agency’s letters insufficient, that would leave the Justices to declare now what “on the basis of sex” means, which is really the best shot that transgender students have of securing a federal legal right to access bathrooms corresponding to their gender identity, perhaps for the foreseeable future. After all, we need to know the meaning of the key term, “sex,” in one of the most important civil-rights statutes in the country’s history. That is properly a question for the Supreme Court or Congress, not duelling [sic] letters from successive administrators.
This is where Suk’s support of the progressive agenda falls short. There are a wide array of rights and interests, problems and questions, wrapped up in this issue, from the privacy of women in locker rooms to the genitalia of your kid’s college roommate, plus the issues that haven’t yet, but most assuredly will, arise.
Dismissing all concerns except those of transgender students evades the problems. Even if the Supreme Court holds that “sex” means “gender identity,” it will unleash a plethora of new and unanswerable conflicts. Maybe society is ready to accept genderlessness. Maybe there will need to be rules established as to how far gender identity can control other people’s rights.
But lest the Court throw society into gender havoc without any clue of how to address the obvious conflicting concerns, this is an issue that Congress must decide. And now that the ACLU can’t rely on Clinton to ram their agenda down a nation’s throat, they have come to realize the danger of their path of law-making by executive fiat.