The Obama administration has used informal regulatory “guidance” to accomplish some major parts of its agenda, including the imposition of a low evidence standard in campus sexual-assault proceedings.
It has also used guidance – which is basically an agency saying “this law means X,” without taking outside input – to force schools to let transgender students use whichever restrooms and locker rooms they want, or lose their federal funding.
With the incoming administration of President Donald Trump, however, liberals who cheered the Obama Department of Education may soon be cursing it for failing to do a proper rulemaking.
Harvard Law Prof. Jeannie Suk Gersen writes in The New Yorker that the legal arguments made by the plaintiff in Grimm v. Gloucester, a transgender restroom case to be heard by the Supreme Court, now stand to backfire on transgender students.
The appeals court sided with Gavin Grimm, who identifies as male, by deferring to the interpretation of the Department of Education’s Office for Civil Rights when it comes to the meaning of “sex” in Title IX. Currently, OCR claims that “sex” includes”gender identity.”
Yet that same argument of deference to the agency would empower a Trump administration to block transgender students from using their restroom of choice if it decides “sex” means what it plainly says, which is anatomy.
If the Supreme Court decides “the agency’s interpretation [should] carry the day even if it is not one that the Justices think is best,” it would “effectively convert the executive agency’s informally expressed views into the law of the land,” Gersen writes:
Come January, advocates of transgender rights, who have enthusiastically supported judicial deference to O.C.R., will have reason for an extreme pivot, given that the new O.C.R. is unlikely to view “sex” as an “internal sense of gender.” It is awkward now for Grimm’s lawyers to argue zealously for the notion that the agency knows best, when only weeks from now, and in coming years, that doctrine is more likely to harm than to help transgender students.
Grimm’s lawyer at the ACLU bafflingly argues that deference isn’t the salient issue because “the only interpretation consistent with” Title IX is that “sex” includes “gender identity.”
That claim was convincingly rebutted by the lone dissenter in Grimm, 4th U.S. Circuit Court of Appeals Judge Paul Niemeyer, who said Title IX would be “illogical and unworkable” and would put schools in an “impossible position” if “sex” meant two contradictory things.
Obama’s vaunted accomplishments on campus sexual assault and transgender rights in schools can be eliminated with the same guidance letters his administration issued, Gersen says:
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. … 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 options for transgender activists are grim (no pun intended).
They can hope that the Supreme Court dismisses the case if Trump’s new OCR reverses the transgender guidance, which would leave in place the 4th Circuit ruling, or that the high court sends the case back to the 4th Circuit in light of an OCR change:
But the Court would not have to take either of these actions. And the consequence of a dodge during this term is that the next time a transgender case gets to the Supreme Court, we would likely be talking about deference to Trump’s O.C.R., by a Court with at least one more conservative Justice on it.
The best option, Gersen says, is for the court to declare that “a mere letter, whatever its contents, does not merit judicial deference” because it ignores the public entirely.
h/t Cynthia Garrett