On May 13, 2016, the Department of Education released a guidance letter titled “Dear Colleague Letter on Transgender Students.”
This is the most recent in the rapidly expanding list of transgender bathroom legislation.
- 1972 – Title IX enacted
- 1975 – Education Regulation (34 C.F.R. 106.33) promulgated
- March 23, 2016 – North Carolina passes its “Bathroom Bill”
- May 13, 2016– Departments of Education and Justice issue a guidance letter
So what’s the problem with a little guidance from our friendly federal regulators?
That this “guidance letter” is actually a disguised legislative rule. First, the Obama Administration overstepped its reach with this edict. Now, an agency created a legally binding rule disguised as a “guidance letter,” using language like must and threatening punishments such as revocation of federal funds for non-compliance. This is a violation of the Administrative Procedure Act (APA). Although government agencies have a lot of leeway, they (1) Cannot create rules that are de facto laws without following the procedures laid out in the APA. If agencies had the ability to do this, they would serve as a second law-making entity like Congress, except without the checks and balances. And (2) They cannot rewrite their own previous rules via completely contradictory “guidance letters.”
P.S. Who is pulling so hard for this new rule? Somebody really wants it to be the new norm and is willing to bend and break rules in order to do it. There are not that many transgender people in positions of power, so who is truly behind this?
Transgender Bathroom “Guidance Letter” Violates Administrative Procedure Act
By: Adam J. Ondo
Texas Tech University School of Law, J.D. 2017
- Introduction: Agency Overreach in the Transgender Bathroom Debate
Alabama Attorney General Luther Strange recently advised the Alabama State Board of Education that it need not follow the Department of Education’s guidance letter promoting a “gender identity” definition of “sex” under Title IX. Complying with this guidance letter would force schools to allow transgender individuals to use the restroom of their choice. Mr. Strange noted that the Department of Education was trying to change the law by changing the definition of sex from a “biology-based” definition to a “gender identity” definition. Because of this attempt by President Obama’s Department of Education to change a statute enacted by Congress over four decades ago and a regulation promulgated by the Department of Education over three decades ago, courts are now going to be faced with multiple lawsuits, most likely alleging violations of the Administrative Procedure Act (APA). This is because the APA, among other things, includes procedural requirements that are intended to prevent agencies from acting as an an unaccountable legislature.
The guidance letter is troubling from a legal standpoint for two reasons. The first is that it is a threat that carries the force of law, yet it did not follow the notice and comment process as required under § 553 of the APA. The second is that the letter’s interpretation of the definition of sex found in Title IX and its accompanying regulations is an impermissible interpretation because in the 1970s sex was biology-based, not focused on gender identity. Both issues are addressed in turn.
- The Department of Education’s Poorly Veiled Threat
Section 553 of the APA requires that legislative rules be promulgated pursuant to a specific notice and comment process. There is an exception for interpretative rules and general statements of policy. Interpretative rules and general statements of policy may not be intended to have the force of law, nor may they be irreconcilable with a prior legislative rule. The Department of Education’s guidance letter does not meet the definition of interpretative rule or general statement of policy. Therefore, the guidance letter is actually a legislative rule that was not properly enacted.
The guidance letter reads: “The Departments [of Education and Justice] treat a student’s gender identity as the student’s sex for purposes of Title IX.” It then goes on to require schools to follow this newly “interpreted” gender identity definition rather than the biology-based definition of sex if they do not want funds to be cut off for noncompliance with Title IX. Analyzing the language used in the letter, one can easily glean that it is written in the form of a command to schools, requiring them to comply. The word “must” arises multiple times, including in this sentence: “[A] school must not treat a transgender student differently from the way it treats other students of the same gender identity,” and this sentence: “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.” One could also go further argue that it is irreconcilable with a prior legislative rule, namely 34 C.F.R. 106.33 and its plain meaning definition of sex. Both of these factors would suggest that it is a legislative rule intended to have the force of law disguised as an interpretative rule or policy guideline. Thus, the guidance letter violates § 553 of the APA.
However, some individuals may read the letter and think that it is not a legislative rule because of the Department of Education included boilerplate language stating that the letter did not “add requirements to applicable law.” This language will not save the Department of Education, though, as most courts know to ignore boilerplate language and focus on the language of the so-called policy statement and look at how it is to be enforced. The Department of Education’s letter is clearly a legislative rule that was issued without following the proper channels and courts should treat it as such.
III. Impermissible Construction of 34 C.F.R. 106.33
The second problem with the guidance letter is that it contains an interpretation of Title IX and 34 C.F.R. 106.33 that is contradictory with the plain meaning of the statute and the rule. Because the Department of Education can base its interpretation on language found in a legislative rule, namely 34 C.F.R. 106.33, the interpretation receives Auer deference. This means that the agency’s interpretation receives deference unless it is “plainly erroneous or inconsistent with the regulation.”
To determine whether the agency’s new interpretation is inconsistent with the regulation at issue, 34 C.F.R. 106.33, it is necessary to discern the original meaning of the text of the regulation. It may be useful to attempt to determine the amorphous concept of agency intent at the time the regulation was promulgated, but only if the original meaning is ambiguous after looking at the plain language of the regulation. In trying to understand the agency’s intent at the time the rule was promulgated, Congressional intent behind the statute the rule was clarifying, namely Title IX, should be examined as a factor.
In the 1970s, when Title IX was enacted, the average citizen would have understood the word sex as a way to delineate between male and female based on biological and physiological characteristics, not a more psychological identity-based distinction. The Fourth Circuit came to a different conclusion a few months ago in a 2-1 decision involving a transgender boy who desired to use the men’s bathroom at his high school, but the majority’s argument is so poorly constructed that the slightest gust of logic sends the whole thing crashing to the ground.
The Fourth Circuit, in G.G. v. Gloucester, determined that meaning of sex, as understood in 1975, should be defined by two dictionary definitions, crafted by intellectuals rather than ordinary citizens, which could be contorted by the court to suggest that some people in 1975 looked beyond the presence of reproductive organs when determining the sex of an individual. Neither definition cited by the court mentions “gender identity,” and “behavioral peculiarities” is listed as a factor in only one of the definitions. That same definition proclaims that sex is a sum of factors that is “is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness.” The Fourth Circuit conveniently dismisses this “typical manifestation” as not “universally descriptive.” In determining the original meaning of a term, courts are to look at what the ordinary person would have thought the term to mean, not a small nucleus of intellectuals. The Fourth Circuit did the exact opposite here in order to achieve its political goal.
Rather than relying on the Fourth Circuit, those wishing to understand the plain language of 34 C.F.R. 106.33 should read a closely related case, decided by the Seventh Circuit, dealing with Title VII: Ulane v. Eastern Airlines. This case from 1984 provides a well-reasoned explanation for why the plain meaning of the word sex, at least at the time, was based on biological differences, not gender identity:
It is a maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning. The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born. The dearth of legislative history on section 2000e-2(a)(1) strongly reinforces the view that that section means nothing more than its plain language implies.
The plain meaning of the word sex in 1975 may not have been universally understood to mean a pure biological difference between men and women, but it definitely was not the Department of Education’s gender identity definition.
Moreover, the idea that the gender identity definition of sex was what the Department of Health, Education, and Welfare intended when it adopted 34 C.F.R. 106.33 in 1975 is ludicrous. Exhibit A in support of this assertion is the life of Judge Phyllis Frye of Houston, Texas. This excerpt, taken from a New York Times article about Judge Frye, suggests that the federal government was not to keen on deviating from the biological definition of sex:
After a long period of unemployment, during which she was reduced to accepting Christmas food donations from her church, Ms. Frye applied for the [federal] government job. And, despite the gossip and prejudice they shared with investigators, all but one of those interviewed recommended Ms. Frye without reservation, saying she was “a loyal citizen of the United States.” But the government rejected her. In a 1977 letter addressed to Mr. Frye — though by this time she had legally changed her name to Phyllis — the [Civil Service] adjudicator excoriated her “pattern of unorthodox practices.” He described her as a “disruptive influence” in her community, “parading around in short shorts, dresses and other female attire.”
The federal government also argued, well into the 2000s, that transgender persons did not receive protection under Title VII if they were discriminated against for acting in accordance with their identified gender.
- Conclusion: Agencies May Not Usurp Congress
Despite the Fourth Circuit’s logical gymnastics, the plain meaning of the word sex in 1975 did not involve gender identity. Furthermore, the federal government’s intent—assuming the federal government is a monolithic entity that has intent—can be gathered from its numerous callous actions against transgender individuals and the position it took up until recently. And though it may seem ironic, even cruel, to suggest that because of past discrimination, agencies and courts may not require non-discriminatory definitions be adopted by educational institutions, this is the proper course of action. Until Congress redefines sex, agencies should not be able to use “interpretative guidelines,” which are actually just improperly promulgated legislative rules, to strong-arm schools into adopting an impermissible definition of the word sex.
 AG advises state BOE to ignore ‘guidance letter’ on transgendered bathrooms, WVTM 13 (May 27, 2016), http://www.wvtm13.com/news/ag-advises-state-boe-to-ignore-guidance-letter-on-transgendered-bathrooms/39763348.
 Dear Colleague Letter on Transgender Students, Dep’t Educ. (May 13, 2016), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.
 Title IX, Education Amendments of 1972, 20 U.S. Code § 1681 et seq. (1972); 34 C.F.R. § 106.31–33 (1975).
 5 U.S.C. § 553(b)(3)(A).
 American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1109–1111 (D.C. Cir. 1993).
 See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (“At any rate, the entire Guidance, from beginning to end—except the last paragraph—reads like a ukase. It commands, it requires, it orders, it dictates. Through the Guidance, EPA has given the States their “marching orders” and EPA expects the States to fall in line, as all have done, save perhaps Florida and Texas.”).
 Auer v. Robbins, 519 U.S. 452 (1997).
 G. G. v. Gloucester Cnty. Sch. Bd., 2016 U.S. App. LEXIS 7026, at *24–26 (4th Cir. Apr. 19, 2016).
 Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir. 1984).
 Deborah Sontag, Once a Pariah, Now a Judge: The Early Transgender Journey of Phyllis Frye, N.Y. Times (Aug. 29, 2015), http://www.nytimes.com/2015/08/30/us/transgender-judge-phyllis-fryes-early-transformative-journey.html.
 See, e.g., Sturchio v. Ridge, 2005 U.S. Dist. LEXIS 37406, at *20 (E.D. Wash. June 23, 2005).