The Obama Administration has done it again. In an effort to strip school children of their modesty and morals, Obama has issued new instructions governing use of restrooms, locker rooms, and showers in every government-funded school in the country. And, in predictably lawless fashion, Obama has violated not one, but two federal laws. First, he took a 1972 law, Title IX, which was designed to prevent sex discrimination in education, and says that as of Friday, the word “sex” in the statute does not mean the “sex” you were born with. It means whatever “gender” you feel like on a given day. And, if that was not bad enough, the manner in which the Obama Administration acted was to legislate by letter, not just usurping legislative power, but by violating another federal law — the Administrative Procedure Act.
Purporting to act according to what are known as official “good guidance” practices, the Civil Rights Division of the U.S. Department of Justice and the Office of Civil Rights of the U.S. Department of Education issued a transgender “good guidance” letter, dated May 13, 2016. Such a “good guidance” letter can only be issued if it does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered agencies are complying with their legal obligations.
However, like a newly enacted statute or promulgation of a new regulation, the May 13 good guidance letter includes a list of new terms, never previously adopted by Congress or the Administration. Not only that, but the letter contains rules governing the interpretation of those new legal terms. For example, the letter defines “gender identity” to be “an individual’s internal sense of gender,” but then forbids the use of any objective standard – such as “medical diagnosis or treatment” — to verify any individual claim. One’s gender identity is, thus, established solely by a person’s subjective claim. And that claim can change from day to day.
Additionally, the good guidance letter indicates that the rules governing “sex segregated activities and facilities” are not the same. As for restroom and locker use, “transgender students “must have access to such facilities consistent with their gender identity,” but with respect to “athletics,” gender identity is not the sole determinant of access. That is, for athletics, a boy who feels he should be a “transgender girl” could be excluded from the girls’ basketball team, but not put out of the girl’s locker room.
None of these examples merely “provides information and examples” of existing regulations — which is all that guidance letters may do lawfully. This letter presents brand new interpretations of the word “sex” and new applications of new terms. And, they are binding. The guidance letter reads in-part: “The Departments treat a student’s gender identity as the student’s sex for the purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”
According to the federal government’s own rules for Agency Good Guidance Practices, guidance letters may not be used to establish “new policy positions that the agency treats as binding. Rather, the government agency must apply with the APA’s notice-and-comment requirements.”
The U.S. Court of Appeals for the District of Columbia Circuit has observed that such guidance letters can be abusive, for under them: “Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.” Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000). That is not law — it is “fiat.”
Moreover, the DOJ and DOE guidance letter misleads. Masquerading as a “Dear Colleague” letter, the two departments act as if they are just co-workers with the nation’s college presidents and university provosts, school superintendents and principals — laboring together “to make educational programs and activities safe, and inclusive for all students.” In fact, however, this “dear colleague” letter represents a threat, not an invitation. If it were collegial, it would have been penned and signed only by the Assistant Secretary for Civil Rights in the Department of Education, the federal co-worker. Instead, the letter is also signed by the Principal Deputy Assistant Attorney for Civil Rights in the Department of Justice — the federal enforcer.
Both signers pretend that the newly hatched transgender student policy is not worthy of public debate and decision by the people’s elected representatives in Congress. Rather, it is a done deal. It is time for the people to call on their elected state officials and representatives to fight for their right not to be governed by two leftist unelected bureaucrats. Now, the only question is whether the supposedly sovereign states will cave to federal threats, and whether the federal courts will look the other way, as they have done all too frequently in the past.
Just Tuesday, we filed an amicus brief in the Fourth Circuit case of G.G. v. County of Gloucester. This brief was filed for Public Advocate of the United States, the United States Justice Foundation, and Conservative Legal Defense and Education Fund. Our brief was in support of an effort to have the Fourth Circuit reconsider its decision upholding the Obama Administration’s order that the boys’ restrooms in Gloucester County, Virginia schools be opened to girls, and, by the logic of the decision, would open the girls’ restrooms to boys. One would have thought that the Obama gang would have awaited a decision from the Fourth Circuit, but it was not to be. The Obama Administration sees that with each turn of the calendar there are fewer and fewer days to remake America, as President Obama promised in his inaugural address. So much damage to be done, and so little time to do it.
Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together they have filed over 85 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at firstname.lastname@example.org or twitter.com/Olsonlaw.