The Dear Colleague Letter on Transgender Students and Significant Guidance

On Friday 13, 2016, the U.S. Department of Education Office for Civil Rights (ED) and the U.S. Department of Justice Civil Rights Division (DOJ) sent out the Dear Colleague Letter on Transgender Students. It is my understanding this letter went out to at least every public school in the country.

I really want to address what I see as a larger issue. Others I am in contact with have raised the issue of circumventing the political process of establishing regulation and law, especially with the use of significant guidance documents. Before I get into the larger issue, there are two sections of the letter that stood out to me and I want to share here.

On page 3 of the letter, in the section on Restrooms and Locker Rooms, it says, “A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.” On page 4, in the section on Housing and Overnight Accommodations, it says, “Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single-occupancy accommodations if it so chooses.” It seems that these two sections open the door for students/parents who are uncomfortable sharing a restroom to request additional privacy. In my read of this, it would not be unreasonable for a student (or a parent to request on behalf of their student) to request to use a locked single occupant restroom in the nurse’s office or other available location. The statement says “make individual-user options available to all students”. It does not limit this to transgender students or non-transgender students.

Now, on to a larger issue related to this letter. For this issue, I would encourage you to read the letter and read the Federal Register linked in the second footnote of the letter. I am not a legal eagle so I am sure I have missed some important points and possibly misinterpreted others. I am going to comment about things I see in this document related to the letter. I would hope others with more knowledge and expertise would analyze this document and provide clarification.

First, the larger issue has to do with the circumvention of the political process by the federal government and nongovernment organizations. Executive directives, threats, withholding funds, requiring assurances, outside nongovernment organizations—non-representative groups establishing policy, regulation development and changes without congressional approval or authorization…   all taking power away from the people and influencing (or coercing or intimidating) states, local districts, and citizens to comply with the will of the powers that be, even if there are no regulations in place. The ED and DOJ deem this letter to be “significant guidance” (see the first sentence of the second paragraph of the letter). In a big way, it appears the use of “significant guidance” is another method being used to circumvent the political process

I think the issue of “significant guidance”, especially as it relates this letter, needs to be thoroughly investigated (and by someone more qualified than me). My read of the Federal Register raises more questions than it answers.

In preparing the Dear Colleague Letter on Transgender Students letter, I trust that the ED and DOJ adhered to the established basic requirements for significant guidance documents. One requirement is to include the citation to the statutory provision or regulation that the guidance applies to or interprets. Title IX of the Education Amendments of 1972 (Title IX) is what is cited. Why has it taken since 1972 to have the implementing regulations interpreted the way it is being interpreted in this significant guidance letter? With all of the attention given to Title IX over the years, it is truly amazing that only now we are being enlightened as to what the regulations really mean. I question their interpretation of Title IX and what the ED and DOJ would like to impose as regulations via significant guidance.

The letter states: “This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.” A guidance document shouldn’t be able to add requirements to applicable law so I am okay with that part of the statement. I do question whether the covered entities, i.e. schools, are legally obligated to comply with the terms laid out in the significant guidance letter.

Once again, I encourage you to read the Federal Register linked in the second footnote of the letter. On page eight of nine in this Fed Reg, it presents the Bulletin for Agency Good Guidance. The information in the seven pages leading up to this Bulletin is quite revealing. I will present some excerpts in italics that stood out to me. I have added any bolding that appears for emphasis. The excerpts will be presented in the order they appear in the document.

Because it is procedurally easier to issue guidance documents, there also may be an incentive for regulators to issue guidance documents in lieu of regulations. As the D.C. Circuit observed in Appalachian Power:

The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.

This acknowledges that significant guidance documents, such as the letter, are used to make law without going through the proper established process. In essence, the use of significant guidance documents for this purpose is establishing it as a new process for making law.

The courts, Congress, and other authorities have emphasized that rules which do not merely interpret existing law or announce tentative policy positions but which establish new policy positions that the agency treats as binding must comply with the APA’s notice-and- comment requirements, regardless of how they initially are labeled.

I am not aware of the ED and DOJ complying with the notice and comment requirement. Maybe they don’t see this letter as establishing new policy positions that they are going to treat as binding. The tone of the letter sure sounds like it is their intent to have it bind.

Developed with appropriate review and public participation, accessible and transparent to the public, of high quality, and not improperly treated as legally binding requirements.

Was there appropriate review and public participation? Do the decisions and positions taken in North Carolina constitute appropriate public participation? Did the ED and DOJ short circuit Agency Good Guidance Practices and possible requirements in a rush to bully NC into compliance with what may not be regulation?

requirements for agencies to enable the public to comment on significant guidance documents or request that they be created, reconsidered, modified or rescinded;

This opportunity to comment has been provided in the letter with two email addresses and two phone numbers. If there were hundreds of thousands of people who commented and requested this guidance be rescinded, do you really think that would happen? If it is reconsidered, modified, or rescinded, I think it will be a result of other unignorable pushback and not requests they likely will pay little attention to.

Nothing in this Bulletin is intended to indicate that a guidance document can impose a legally binding requirement.

Plain and simple. I don’t believe the significant guidance letter is legally binding. It appears to be a threat to withhold funds for noncompliance to the will of the current administration.

Guidance documents are considered ‘‘significant’’ when they have a broad and substantial impact on regulated entities, the public or other Federal agencies

This letter is definitely significant.

Guidance can have coercive effects or lead parties to alter their conduct.

Brutal honesty. The intent of the letter is to coerce schools (parties) to alter their conduct and comply with the non-regulatory will of the current administration

Unless the guidance document is exempted due to an emergency or other appropriate consideration, the agency should observe the notice-and-comment procedures of section IV.

I do not know if this guidance document was exempted from observing the notice-and-comment procedures. If they did provide notice and comment opportunity, it must have been provided in the manner depicted in “Beware of the Leopard”.

Finally, Section II(2)(h) clarifies that, given their legally nonbinding nature, significant guidance documents should not include mandatory language such as ‘‘shall,’’ ‘‘must,’’ ‘‘required’’ or ‘‘requirement,’’ unless the agency is using these words to describe a statutory or regulatory requirement, or the language is addressed to agency staff and will not foreclose consideration by the agency of positions advanced by affected private parties.

Once again, significant guidance documents are legally nonbinding.

Although this Bulletin does not require agencies to provide notice and an opportunity for public comment on all significant guidance documents before they are adopted, it is often beneficial for an agency to do so when they determine that it is practical. Pre- adoption notice-and-comment can be most helpful for significant guidance documents that are particularly complex, novel, consequential, or controversial.

Interesting that the letter has this Fed Reg as its second footnote. If they followed this advice and allowed for pre-adoption notice-and-comment it was in the form of a “Beware of the Leopard” notice. Did the ED and DOJ not think this significant guidance document was not particularly controversial? I don’t think they have seen anything yet with regard to how controversial this is.

I was on the phone yesterday with a father of an eighth grade student in another state. Even before this letter came out his son’s school put new transgender bathroom policies in place. They did not inform the parents—intentionally made no attempt to do so. When school officials informed the students of the policy change, they told students not to tell or talk with their parents about the policy. They threatened to punish students whose parents contacted the school about the policy. The school officials did not want to have to deal with parents who question or disagree with the policy…   so they threaten to punish students. How very grown up. And parents trust these people to care for and educate their kids. Really.

I can’t resist going further with the identity issue. Now that we can assert a gender identity of our choice and be protected and recognized in that identity, let’s take it a step further to personal identity.  I assert, that for today at least, that I identify myself as Bill Gates.  And according to my civil rights and so as not be discriminated against, I am entitled to be recognized and treated according to my new self declared identify. Who do you identify as today?  I think we have one foot firmly in the middle of a squishy cow pie and the other foot squarely in chaos.

This is a fitting place to share my favorite Douglas Adams quote. “Reality is frequently inaccurate.”

I do not recall the U.S. Constitution having provisions for the use of significant guidance documents to make law or regulations. Maybe I missed the significant guidance document that created such a provision.:)