Last week, a judge in Texas temporarily blocked a rule by the Department of Education that required schools to allow students to use whatever bathroom facilities corresponded with their gender identities. Americans can debate whether or not that particular rule was good or bad policy. However, it ultimately does not matter if the rule was good if the Department of Education had no authority to issue it in the first place.
The Department of Education issued the ruling as a reinterpretation of Title VII of the Civil Rights Act of 1965 and Title IX of the Education Amendments of 1972. Title VII bans discrimination by employers on the basis of sex (and other categories). Title IX states that “No person in the United States 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.”
In May, the Department of Education issued a “Dear Colleague Letter” requiring schools “immediately [to] allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding.” It justified the letter by stating that the term “sex” was ambiguous and that it should be interpreted broadly to include transgender individuals. It further argued that because of the ambiguity, the Department of Education was entitled to deference by the courts to its particular interpretation of a statute.
When ambiguity does arise, courts generally do defer to administrative interpretation. However, that custom still requires actual ambiguity. In this case, the term “sex” is unambiguous.
First of all, without even reading the law, there is the obvious social context in which Title IX was passed. It was passed in 1972 in order to advance women’s and girls’ educational opportunities. 1972 was the same year that the Equal Rights Amendment passed Congress. Title IX was clearly part of a larger movement to advance women’s rights. It strains credulity to believe that its authors, 44 years ago, had intended “sex” to mean anything other than biological sex.
The actual text of Title IX also clearly demonstrates that there is no ambiguity in it. A less often cited provision states that schools “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex [emphasis mine].” Besides explicitly allowing separate facilities, the language of “the other sex” clearly exists within a binary situation. It does not refer to multiple gender identities, but of the two biological sexes.
Even the lawyers for the Department of Education stated that “it may very well be that Congress did not intend the law to protect transgender individuals.” Perhaps the law should be updated to accommodate transgender students. However, as it stands, Title IX clearly protects against discrimination only in cases involving biological sex.
The attempt to enforce a rule that does not exist is not the only problem with the Department of Education’s policy. The court also found that it violated the Administrative Procedures Act (APA). That law requires the government to have a notice and comment period on substantive (or “legislative-type”) rule changes but excludes interpretive rules and general statements of policy. “Substantive rules” do not have a definition in the APA, but there has been some court precedent on what defines them. One signifier is a rule that “affect[s] individual rights and obligations.” Another main signifier is if the rule “establishes a binding norm” on regulated entities. The Department of Education maintained that this rule change was just an interpretive rule change but it was clearly substantive. The Department threatened funding to any school that did not comply. That is clearly coercion that binds schools to follow the rule.
To be clear, school districts, states and even Congress can create new policies to accommodate transgender individuals. What cannot happen, though, is unilateral changes to the law either at the hands of unelected bureaucrats or from the president. The executive branch is charged with seeing that the laws are faithfully executed. It could start by not enforcing laws that don’t exist and following ones that do.