The College Fix

There’s a little thing called the Administrative Procedure Act

The job of the media is supposed to be reporting and illuminating the facts, putting them in proper context for readers, viewers and listeners.

Their coverage of President Donald Trump’s rescission of his predecessor’s guidance on transgender accommodations in public schools has been, frankly, deplorable.

The typical article I’ve seen portrays the move in starkly political terms with little accompanying context: The president bowed to his socially conservative base and put transgender students back in the Stone Age of policy (pre-spring 2016).

So I practically leapt with joy when I read Derek Hawkins’ story in The Washington Post about the “short, troubled life” of the Obama administration’s half-assed attempt at changing four decades of common understanding of the non-ambiguous word “sex” in Title IX.

Hawkins notes that President Barack Obama’s guidance was on “shaky ground from the get-go,” enacted by “the stroke of a pen,” suspended nationwide by court injunction, and dismissed by the stroke of a pen.

The guidance told schools they had to let transgender students use communal bathrooms and locker rooms – places where minors get naked – based on their gender identity, because requiring them to use alternate accommodations “singles out and disadvantages a particular class of students.”

It described the palpable fear of little girls having to undress around naked anatomical males, laid out in one representative lawsuit by parents against a school district that complied with the guidance, as “discomfort.”

And it never went through the required notice-and-comment proceeding mandated by the Administrative Procedure Act.

A judge who doesn’t buy the government’s BS

Hawkins correctly notes this guidance did not have the “force of law” – it was solely the administration’s nonbinding opinion, and a rather curious one, about the meaning of “sex” in Title IX:

Still, the threat to schools was clear: play by our rules or we’ll cut off your federal funding.

Not only did states and parents flood the courts with lawsuits saying the directive was a blatantly illegal overreach of federal authority, but when grilled in federal court, Obama’s Justice Department tried to dance around the fact that it was threatening school districts that didn’t play ball.

One DOJ lawyer told the incredulous Judge Reed O’Connor, who ultimately slapped an injunction on the guidance:

They are not forced to do any of that [change privacy rules in intimate spaces] at the moment. Now, of course, the Government would like them to comply with the law [it’s not the law] but the fact is, if they so choose, if they believe their interpretation of the law is correct they can wait for initiation of an enforcement action and then make their argument in context of the enforcement action and they lose nothing.

This is basically the government telling a defendant, the nation’s public schools, to take a plea deal (change your rules now) rather than face an unpredictable jury (lose your funding until you prevail in court). It is predatory prosecution at its core.

Trump’s new “Dear Colleague” letter was about the least his internally conflicted administration could do, simply withdrawing the government from defending and enforcing a curious reading of Title IX for the moment.

The change is well-timed, given that the Supreme Court will soon hear oral arguments in a transgender bathroom case that was explicitly decided based on the government’s breezy, unilateral, groundless decision that “sex” and “gender identity” are synonymous in Title IX.

The lone dissenter in the 2-1 appeals court decision in favor of that transgender student had warned that the government’s guidance was “illogical and unworkable,” setting up an irreconcilable clash between the mutually exclusive terms “sex” and “gender identity”:

[N]o restroom or locker room separation could ever be accomplished consistent with the regulation because a transgender student’s use of a boys’ or girls’ restroom or locker room could not satisfy the conjunctive criteria.

For more contextual parsing of the guidance, its history and potential effects – particularly for victims of sexual assault – see Ryan T. Anderson’s helpful article in The Daily Signal Wednesday.

Anderson moderated a panel discussion last week featuring radical feminists and conservative women who oppose the swift redefinition of “sex” to mean “gender identity” in American culture and regulation.

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