Can the federal government rewrite the meaning of “sex”?
The Supreme Court has made it official that next year, for the first time in its history, it will hear a case involving a transgender person’s right to use a bathroom that corresponds with his “gender identity” while at school.
To briefly summarize, Gavin Grimm (or GG as he is referred to in court documents) is a transgender male. This means that the sex at birth was female, but he identifies as male. According to court documents, Grimm “lives all aspects of his life as a boy” but has not had sex reassignment surgery.
Prior to the start of his sophomore year of high school, Grimm and his mother informed the Gloucester County School Board that he was a transgender boy. By all accounts the Board was exceedingly accommodating. For about seven weeks (and with his school’s permission), Grimm utilized the boys’ room without incident. Eventually, however, students took note of the fact that Grimm was a transgender boy, and some were less than comfortable with the arrangement.
In response, the school board devised a policy whereby all students would either need to 1) utilize bathrooms that correspond with their sex assigned at birth; or 2) utilize one of several “unisex” or gender-neutral bathrooms. Grimm filed this law suit to challenge that policy.
Grimm won in the lower courts, but the Supreme Court put that ruling on hold pending a decision whether to take the case.
Despite the manner in which every major news outlet will likely cast this dispute; the question the Supreme Court will consider is not whether transgender individuals have a right to use the bathroom of their choice. Rather, the question is whether a President, acting through his administrative agencies, has the authority unilaterally rewrite longstanding laws and regulations out of convenience.
Grimm’s claim rests entirely on the language of Title IX and its implementing regulations, which, from the outset, were an effort to promote gender equity in education among men and women. The Department of Education, however, is now seeking to expand Title IX as a means to promote bathroom and locker room access rights for transgender people.
To be sure, it’s not just the Department of Education seeking to facilitate this expansion of rights via Title IX. The Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), at the direction of President Obama, are unilaterally deciding to reinterpret Title VII, as well. Title VII governs conduct in the workplace in the same manner Title IX governs educational institutions, and is substantially similar in its language. Accordingly, where the Supreme Court falls on the issue of the reinterpretation of Title IX and schools, Title VII and the workplace will surely follow.
Proponents of the this new direction hail the reinterpretations as a victory for transgender civil rights, while opponents have cast it as yet another in a long line of executive overreaches by President Obama and his federal agencies. It’s worth noting that opponents are not simply making a mountain out of a mole hill here. There are very legitimate concerns and far reaching implications that will follow if the executive branch is permitted to effectively rewrite a longstanding law on its own.
While I do not doubt the sincerity of those in support of the reinterpretation of Title IX and Title VII, agency insistence on focusing on the outcome, rather than the process to attain it, marks woeful short-sightedness and it keeps the United States firmly on a path toward a dangerous consolidation of power in the executive branch.
Casting aside the relative merits of the transgender rights movement, and viewing this solely through a lens of the law and policy, the DOJ and the Department of Education simply cannot put forth serious argument that their new path may be pursued within the bounds of our law.
In GG, the crux of the government’s position is that they are not adding a new law, but rather, they are giving fresh guidance on how to interpret an old one. Therefore, the government believes, normal legislative and regulatory procedure may be circumvented in favor of the vastly more expeditious path they’ve taken.
In order to cloak the clear rewriting of federal law by the executive branch with an appearance of legitimacy, the Department of Education claims to be merely “interpreting its own regulations.” By couching their new direction in these terms, current Supreme Court precedent gives federal agencies broad discretion to essentially do what they like.
Indeed, the nation’s highest court has previously said that where the agency’s interpretation of its own regulations is at issue, a court will not interfere “unless [the interpretation is] plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). Notwithstanding the fact that Auer has been roundly criticized – even by its own author – and may very well be overturned in the coming years, it remains the judicial standard under which actions like the transgender reinterpretation are reviewed.
Nevertheless, even under this incredibly deferential (and, in the opinion of many, misguided) standard, the unilateral rewriting by the Obama administration of longstanding statutory and regulatory provisions ought not to stand up to judicial scrutiny.
Importantly, Auer allows for deference to the agency only so long as it is not “inconsistent with the regulation.” The Obama Administration’s reinterpretation of the plain language of the regulations results in exactly the kind of inconsistency barred by Auer.
For example, Title IX provides, “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) [Emphasis Added]. The implementing regulations, however, expressly carve out an exception to the general prohibition on discrimination allowing schools to provide “separate toilet, locker room, and shower facilities on the basis of sex…” as long as they are comparable to one another. 34 C.F.R. § 106.33 [Emphasis Added].
For over forty years, the term “on the basis of sex” has referred only to “biological sex,” i.e., the sex assigned at birth. Earlier this year, the Office of Civil Rights for the Department of Education decided a new wrinkle should be added to the regulations:
When a school elects to separate or treat students differently on the basis of sex… a school generally must treat transgender students consistent with their gender identity.
And with that, forty years of precedent were effectively disregarded. The question the Supreme Court must answer is this: Is this unilateral reinterpretation legal? That is to say, do these executive agencies have the authority to so dramatically reinterpret a long accepted law because they desire it to cover more situations?
The answer, in my opinion, ought to be no. Notwithstanding the extreme deference courts grant executive agencies in interpreting their own regulations, this reinterpretation fails to pass muster. Critical for our purposes, the Supreme Court has made clear it will not defer to an agency’s interpretation of its own regulation where, as here, “an alternative reading is compelled by the regulation’s plain language or by other indications of the [agency’s] intent at the time of the regulation’s promulgation.” Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994) [Emphasis Added].
It is beyond serious contention that Title IX and its implementing regulations contemplated transgender individuals when they were first promulgated. To the contrary, it is clear that the new interpretation represents little more than a convenient litigating position to achieve a desired outcome. The merits of this outcome aside, the process utilized by the executive branch in achieving it must not be lightly acquiesced to.
I say this not because I have anything in particular against transgender people, but rather because of what the alternative means. The alternative all but removes the power to make law from the legislative branch (Congress), and further consolidates it in the executive (the President). The executive agencies responsible for the reinterpretation of “on the basis of sex” engaged in none of the formal rule making procedures, which allow for public insight and input, and maintain at least the veneer of democratic consultation in this process. They did not seek out Congress, and request they reexamine Title IX and Title VII. Instead, at the direction of the President, executive agencies are attempting to will a law into existence out of sheer convenience.
The United States is not a traditional democracy for good reason. We have elected representatives whose sole purpose in government is to make law. We have agencies that fill in the gaps in that law. We have a Bill of Rights and a Constitution that rightly remove certain issues from the passing fancies and fickle whims of bare majorities. But when we drift so far from the people in considering issues of such social importance – notwithstanding how confident we are in our moral high ground – we do so at a great disservice to the issues themselves, and we gravitate closer to a government merely of men, rather than one of laws.
Bryan Jacoutot is an attorney based in Atlanta, Georgia.
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