Federal rule dispute is a key element in transgender case

Federal rule dispute is a key element in transgender case

(District of Columbia)  On the surface, the suit pending before the U.S. Supreme Court over bathrooms and transgender students would seem to be a straight-forward conflict over civil rights. But some experts believe the case brings forward a far different argument over the limits of federal rulemaking.

A key foundation for the legal challenge being brought by a Virginia teen over the use of campus bathrooms is based on an interpretation of federal law issued by the Obama administration last spring–the same one that was rescinded last week by the new Attorney General Jeff Sessions and new U.S. Education Secretary Betsy DeVos.

Sent to states and school districts across the country, the Obama letter opined that it was the position of the federal government that students in the public schools had a right to be treated according to the gender identity, not their gender at birth.

The directive, coming in the form of a “Dear Colleague” letter, didn’t have the power of law, but it did carry the threat of legal and fiscal sanctions so severe that it served basically the same purpose. The letter was also one form of a system of rule increasingly used by the executive branch to cudgel state and local governments into compliance on a wide range of policy goals that may or may not be spelled out in statute.

It is this form of bureaucratic governance that some say members of the Supreme Court want to dig into as part of the proceedings surrounding Gloucester County School Board v. GG.

“The reason the Supreme Court agreed to take this case, I think, is only in part due to the civil rights issue relating to transgender students,” said Sloan Simmons, a partner in the education law firm of Lozano Smith, based in Sacramento.

“For years, various members of the Supreme Court have wanted to return to the issue of the appropriate level of deference that must be given to the interpretation of the law by federal agencies,” he said. “While the headline on the case is that on transgender student rights, I think the piece that the Supreme Court may really want to dig into is the appropriate degree of deference courts should grant a federal agency’s interpretation of the law.”

A part of daily life for district administrators and state officials, the Dear Colleague letters from the U.S. Department of Education have typically been issued to help clarify complex areas of federal law, especially as it relates to spending and accounting. But during the Obama administration, the letters began to take on more controversial issues and press for more immediate changes.

The letters fall into a category of federal communications known as “significant guidance documents.” The most recent authority for issuing them comes from a 2007 order from the Office of Management of Budget that claimed Congress gave that office the mandate to help federal agencies carry out their missions.

According to the 2007 OMB order, significant guidance is needed when–among other things–there is a potential for inconsistency or interference between agencies. ItThey can also be issued when new legal questions come up that impacts federal policy.

Similar to a president’s use of the executive order, significant guidance have become a big part of the regulatory landscape not just in education, but many other areas too, like environmental protection and health care.

Although both Republican and Democratic administrations have use of the process, conservative groups grew critical of the practice under Obama as yet another example of what they considered his “over-reach” of presidential authority.

The conservative majority of the Supreme Court may have marked the Virginia transgender case early on as a good one to take up in order to test the limits of non-regulatory federal guidance.

For one, the May letter on transgender rights in schools was issued by both the Justice Department and the Education Department and involved a question that touched virtually every community in the nation.

Secondly, there were many legal scholars that believed the departments were not on safe legal ground in their interpretation of Title IX of the Education Amendments of 1972. That is, there are strong arguments that the protections against discrimination contained in Title IX are limited to the sex of a student, not necessarily gender identity.

Indeed, 13 states filed suit challenging the directive and won an order from a federal judge in August restraining its enforcement.

Simmons said that many in the education community were looking forward to the case going to the high court–not just to resolve the civil rights question, but also to clarify the proper limits on non-regulatory federal guidance.  “While the Dear Colleague letters have been helpful resources over the years, there’s been a degree of push-back from nationwide, including for example by the National School Boards Association in recent years,” he said. “The issue has been with the degree and number of guidance letters, as well as how those letters at times push the envelope on their interpretation of the law.  Some would say that, historically, there was a greater degree of cooperation between educational institutions and the OCR (U.S. Department of Education’s Office of Civil Rights) before developing and issuance of such guidance.”

The fact that the Trump administration has now rescinded the Obama letter could also change the status of the case before the Supreme Court, even though there remains a stark civil rights question to answer.

The thinking here is that with the Obama letter in place, school districts that were not complying with the administration’s interpretation of Title IX could be at risk of administrative actions and penalties. Since the federal government is now leaving the policy of bathrooms and transgender students to the states, it could be argued that there isn’t still a case.

It would seem the justices aren’t sure. Shortly after the Trump administration took action last week, the court clerk send a request to the parties engaged in the Virginia case to submit their views on how things should proceed, including if they  should at all.

There is one school of thought that while conservatives were spoiling to get the question of federal regulatory limits before the court only a year ago–now with the justices split down party lines and a Republican president in power, maybe the time isn’t right. It could be that Sessions will ask that the court stand down, that maybe leaving the status quo for Trump is the best option for the administration.

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