Bathroom order a win for democratic process
PRESIDENT Barack Obama has made a habit of evading the democratic process, choosing to instead impose his policy preferences on the public without buy-in from the public. Good thing the courts keep striking down such actions.
The latest example comes in an order from a federal judge in Texas regarding the Obama administration’s edict forcing schools to end gender-specific public bathrooms. In plain English, anyone who simply says they identify at that moment as male or female may use the corresponding bathroom, regardless of physical gender.
Oklahoma joined Texas and 11 other states, agencies and school districts to argue that the administration effectively issued new federal rules without specific legal authorization or going through legally required rule-making processes. U.S. District Judge Reed O’Connor agreed.
In a “guidance” letter, the Obama administration advised public schools that the prohibition on “sex discrimination” in the 1972 Title IX law now includes discrimination based on a student’s gender identity. Therefore, those failing to allow boys-who-identify-as-girls into the girl’s bathroom faced loss of federal school funding.
The states challenging that edict noted the text of the applicable federal laws (and the congressional record) makes clear they apply only to biological gender. Indeed, federal law specifically allows for separate facilities for men and women. Furthermore, Congress has rejected subsequent attempts to amend those laws to include sexual orientation or gender identity.
Because the administration’s “guidance” effectively rewrote federal law, Oklahoma and other states argued the edict violated the requirements of the federal Administrative Procedures Act by evading public notice and comment and issuing final agency action contrary to law.
The Obama administration argued it didn’t have to abide by the Administrative Procedures Act because the guidance letter was merely interpretive and did not have the force of law, and because Title IX law is ambiguous regarding gender identity.
Yet the administration effectively contradicted itself. In his order, O’Connor noted the guidelines “are clearly designed to target Plaintiffs’ conduct” and that the Obama administration “conceded that using the definition in the Guidelines means Plaintiffs are not in compliance with their Title VII and Title IX obligations.” In addition, O’Connor noted that the state challengers argued the guidance letter would require schools to “consider ways to build or reconstruct restrooms, and how to accommodate students who may seek to use private single person facilities.”
Thus, O’Connor concluded, the guidelines were “not just interpretations or policy statements because they set clear legal standards,” and the administration’s redefinition of “sex” in Title IX was effectively new regulation “by agency action” without complying with administrative procedures. And he found no ambiguity in the original federal law.
The judge granted a temporary injunction barring enforcement of the policy in public schools.
As we’ve noted before, the administration’s edict was among the most expensive and cumbersome ways to address the rare instances in which a student truly identifies as transgender. Schools should be given flexibility to handle such situations on a case-by-case basis.
As O’Connor noted, this debate ultimately centers on “the difficult issue of balancing the protection of students’ rights and that of personal privacy” while also “ensuring that no student is unnecessarily marginalized while attending school.”
If Obama truly wants to foster consensus and greater understanding on this issue, he’d do far better to seriously engage in this debate rather than strong-arm broad swathes of the public.