On April 19, 2016, the Fourth Circuit Court of Appeals effectively ruled that a person’s right to choose how he or she identifies personal gender would determine public bathroom privileges. Finding that Title IX mandated the right to make such a choice must have been a real shock to those who actually passed Title IX. The legal reasoning in Grimm is flawed; it also is hoisted on its own petard. The Court built an opinion that again relies on the misplaced rationale of the Chevron case, expands the power of federal bureaucrats, and permits executive-branch, appointees to re-write laws and statutes decades after they are passed, only to have courts bless the extra-constitutionality of the action under the guise of agency deference. The decision is malignancy on the soul of federalism and representative democracy. Americans stand as helpless witnesses to the continued rise of the administrative state.
The importance of the ruling is not in how one feels about whom should be permitted in which bathroom. The concepts of gender identity are not unimportant, and these public choice questions certainly deserve a full, open, honest vetting. After such discussion, communities might pass legislation that reflects how those communities want to address these matters, if at all. That is how the system works. I support and would engage in such democracy. However, the emotions of the day that titillate prurient interests have nothing to do with the affront to our constitutional republic that is the backbone of this legal decision by the Fourth Circuit. The issue of the day really is not about the Court finding that Title IX mandates the right of gender identity choice. I pose this this question to define the issue; how did we get to a point in this country where a Federal Court makes federal law based upon the legal opinion of an executive appointee – a lawyer – who chose to re-interpret Title IX more than 40 years after elected legislators passed the law? This is the expansion of the administrative state … and America faces no greater danger than laws and rules foisted on the people by bureaucrats. So, let’s discuss that poppycock – rather than the tomfoolery that surrounds this issue.
The Court in this case held that Title IX applied to the Virginia school because it takes federal funds and because in the Court’s analysis Title IX prevents discrimination against an individual who chooses his or her own gender identity. Holy the “law-doesn’t- say-that” alert! Title IX is dead silent on gender identity. It is not ambiguous as the Court postulates. In order to rewrite Title IX the Court had to find an ambiguity and then permit the 2015 opinion of a justice department lawyer on that law to be the deciding factor in the case. The Court, relying on the record in the case below as it must, gave deference to the “agency opinion” interpreting the statute, and thus found that Title IX says what that justice department lawyer claims it says. In short, the lawyer wrote an opinion about the law 43 years after it passed, and that interpretation served to amend the law. This is not a joke … nor is it hyperbole. Where the Court went wrong was in trying to force-feed its agency deference argument by finding that silence in a statute is ambiguity.
I have no idea who that Justice Department lawyer is who conjured up that strained legal opinion. Do you? Did you vote for that person? Do you recall being included on a conversation about changing Title IX? How does a law, passed by Congress and signed by a president get amended by a legal opinion of an unknown, unelected, bureaucrat … decades after the law’s passage? It’s bad enough Courts are at times improperly amending laws, now we have bureaucrats doing it. This “double-delegation” of law-making that permits agencies to create “rules,” modify interpretations, or draft legal opinions that change laws is not merely extra-constitutional, it ought to be unconstitutional. If the American people think Title IX or any federal law needs reform, then their duly elected federal representatives ought to hold hearings, examine the law, and propose modifications to it. If we are going to permit the appointees of Presidents to modify laws through administrative agencies, then the people have lost all their power to the executive. That is not our system.
To be fair, executive power-grabbing is not new. This is not merely an “Obama” overreach special. For sure, Mr. Obama’s legal interpretations and executive overreach take executive power consolidation to a new level. Using the administrative state for political purposes that change laws, refuse to enforce other laws, or create whole new laws from rules, however, is something that has been actively growing since the late 60s under every President. It must stop. It constitutes a growing power in the executive branch that subjugates the legislative branch and the people they represent. The result is the destructive rise of an administrative state that usurps legislative authority, manipulates court rulings, and decapitates federal representatives – and thus silences the voice of the people in a growing federal leviathan.
The Grimm case out of Virginia is grim indeed. The fear mongering about who lurks in which bathroom stall and mixed up notions of privacy, gender, and equality might be interesting water cooler gossip, but the most potent threat facing Americans today is not the gender undecided, it is the Constitutionally ignorant. Unelected lawyers and bureaucrats have no business amending our laws on behalf of the executive or anyone else. That is a legislative function. Once we cede all power in the republic to one branch and its minions, the Constitution is of little value … unless you run out of toilet tissue in the bathroom of your choice.
Richard Kelsey is an Assistant Law School Dean. A former Virginia state court law clerk and commercial litigator, Dean Kelsey was also the CEO of a technology company. He has previously taught legal writing and pre-trial practice. He is a regular commentator on legal and political issues in print, and on radio and TV. His opinions are his own, and do not represent any institution or entity. His Twitter handle is @richkelsey.