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HOWARD HUMAN & CIVIL RIGHTS LAW REVIEW © 2016 

One Step Forward, Eight Years Back: Federal Agency Guidance Documents as a Fickle Method of Expanding LGBTQ+ Equality

November 8, 2017

 

          Imagine after decades and decades of struggle, finally having access to important and necessary medical procedures. Imagine being able to breathe a bit easier knowing that employers cannot fire people for simply being who they are and living their truth. And then imagine everything collapses. Imagine hearing a news report and frantically scurrying to get everything in order before it is too late. Imagine running through a checklist before January 21, 2017: Identity documents? (Be sure to file that paperwork). Hormones? (See if the doctor can write a prescription that will last several years). Insurance? (Who knows?). Imagine trying to frantically complete everything you need before it is too late– before access to the necessities is gone for another four to eight years. Another four to eight years back in the closet.[i] Another four to eight years of hiding because that is what is safest. Because hiding is what will keep you, your job, your house. Another four to eight years of trying to stay alive. Another four to eight years of, not thriving, but barely surviving.

 

          Throughout recent lesbian, gay, bisexual, transgender, queer (LGBTQ+) American history, there have been the big victories: Obergefell,[ii] Windsor,[iii] Lawrence v. Texas.[iv] There have been the victories that happened outside of the court: legislative victories like the Matthew Shepard and James Byrd Hate Crimes Prevention Act.[v] There have been instances of simple, yet momentous validation: Loretta Lynch essentially saying, “Hey, trans folks, we see you and we have got your back.”[vi] There has even been an openly trans person working at the White House.[vii] It has undoubtedly been an uphill battle for what feels like forever. From declassifying sexual and gender identities as results of mental illness,[viii] to getting access to fundamental rights like marriage, there has been a lot of progress in recent history. But, there is still so, so much more to be done—especially for the trans community.

 

           History is colored by an overarching trend of leaving trans people in the dust. Trans people founded the modern queer rights movement and yet have been, and still are, shoved to the side in order to obtain the “victory” of getting rights that are simply more palatable without them.[ix] Even though it may have seemed to the majority of non-LGBTQ+ people that Obergefell was it, the fight is far from over. The trans community still needs job security, access to affirming healthcare, safety in public accommodations, and that is just the beginning. The Obama administration’s executive branch made some of the largest strides toward extending protections and rights to the trans community.  Some of those protections were extended quickly through agency guidance documents. But as quickly as those protections were extended is how easily they can be and have been revoked, leaving trans Americans with a sharp feeling of whiplash. So imagine what it was like on November 8, 2016: Election results in. Futures destroyed. Lives ruined. Progress halted and reversed for the foreseeable future.

 

          The first section of this article will provide a very brief and very simplified overview of administrative law to provide context. The second section will explain and discuss the Department of Education’s guidance around how Title IX will be interpreted by the agency. The third section discusses the temporal nature of guidance and the fourth section explains how best to avoid that transient character when trying to effectuate lasting change.  

 

I. A Very Brief and Very Simplified Overview of Administrative Law  

 

          The executive branch (the president) is in charge of implementing and enforcing laws made by the legislative branch (Congress).[x] The executive branch does this mostly through federal administrative agencies (like the Environmental Protection Agency and the Department of Health and Human Services). However, because certain areas of legislation are complex and often heavily reliant on science, Congress gave administrative agencies the power to make laws, or “rules,” in their respective areas of expertise. These rules have different purposes and procedures and, “[a]ccording to the federal Administrative Procedure Act (APA), rules developed by agencies can be categorized into legislative rules, interpretive rules, procedural rules, and general statements of policy.”[xi] Legislative rules are those that have binding legal effect similar to the laws made by Congress. Agencies can make legislative rules through a rulemaking process that involves public input or they can make them through adjudications (similar to a court proceeding).[xii] Agencies can also issue “nonlegislative rules” which are rules that are not binding on the broader public. These nonlegislative rules often take the form of policy statements or guidance documents. A policy statement, “operate[s] as a guide to an administrative agency’s exercise of discretion…[they] do not have substantial influence over parties, and therefore are not considered as legislative rules.”[xiii] Policy statements do not have binding legal effect because they “merely announc[e] to the public the policy which the agency hopes to implement in future adjudication.”[xiv]

 

          In addition to enforcing and implementing the laws of Congress, the president can also issue executive orders (EOs). EOs function as a method to “direct executive officers or clarify and further existing laws.”[xv] Essentially the president writes an order and the agencies have to go about putting that order into effect. If the president issued an EO that directed agencies to create rules and policies that were more inclusive of trans people, the agencies could, at the direction of the EO, issue guidance documents that reflected how the agencies planned to accomplish that directive within their specific enumerated authorities. 

 

II. One Step Forward: Last Year’s Title IX Guidance

 

          The Department of Education (DOE) and the Department of Justice (DOJ) issued a joint guidance document on May 13, 2016.[xvi] This letter stated that the DOE and the DOJ were interpreting the word “sex” in Title IX of the Education Amendments of 1972 (Title IX) to include “gender identity.”[xvii] This means that Title IX’s prohibition against sex discrimination also included a prohibition against discrimination on the basis of gender identity. Essentially, even though the specific language of the statute only said “sex,” the DOJ and DOE intentionally chose to interpret that word to include gender identity in order to expand Title IX protection to trans and gender-non-conforming students. Schools’ receipt of federal funding directly corresponds with their compliance with Title IX so, in order to continue to receive those funds, schools must incorporate this expanded definition into their practices.[xviii]  

 

          The guidance document included a helpful definition of “gender identity” as: “an individual’s internal sense of gender…[which] may be different from or the same as the person’s sex assigned at birth.”[xix] While, in reality, sex is not actually the same as gender or gender identity, interpreting “sex” to include gender identity was a more efficient manner of ensuring Title IX protected trans and gender-non-conforming students, too. This move is like a sort of “legal correction” to include trans and gender-non-conforming people within already existing protections.[xx] This effectively stopped schools that were accused of discrimination from saying, “oh, we aren’t discriminating against you because of the sex you were assigned at birth, we’re doing it because you’re trans, which—surprise! —is totally legal.”

 

          Naturally, this guidance was challenged in court last year. A District Court Judge ordered a “nationwide order prohibiting the federal government from enforcing the guidance” because he found that “the Obama administration overextended its authority by applying the provision against sex discrimination in Title IX of the Education Amendments of 1972 to transgender students.”[xxi] The DOJ requested a partial stay on the order on November 23 before the Fifth Circuit so that the order would only apply to the twelve plaintiff states that filed the action while an appeal of the order was pending.[xxii] So things are looking up, right? This request would likely be granted and the DOJ would continue to valiantly advocate for the protection of trans and gender-non-conforming students under Title IX in their schools, right? Gavin Grimm[xxiii] will have a legitimate chance in front of the Supreme Court in a few months, right?

 

III. Eight Years Back: Trump Unravels Everything

 

          Wrong. On the exact same day that Trump’s new Attorney General, Jeff Sessions, was sworn in, the DOJ withdrew its request to stay the order. [xxiv] The DOJ has also cancelled the oral arguments on that request that were scheduled for February 17, 2017.[xxv] Although as of right now, the legal ramifications of this are unknown, they most certainly are not good for the trans community. Already, over 700 parents of trans students have written to Trump, advocating for the protection of their children. Their response to this action states:

 

          No young person should wake up in the morning fearful of the school day ahead. When this guidance was issued last year, it provided our families -- and other families like our own across the country -- with the knowledge and security that our government was determined to protect our children from bullying and discrimination. Please do not take that away from us.[xxvi]

 

          Chad Griffin, President of the Human Rights Campaign stated that this move signals Session’s “intent to undermine the equal dignity of transgender students… It is heartbreaking and wrong that the agency tasked with enforcing civil rights laws would instead work to subvert them for political interests.”[xxvii]

 

          On February 22, 2017, the Trump administration (through Sessions and the Secretary of Education Betsy DeVos) revoked the trans inclusive Title IX guidance.[xxviii] The progress that took years of hard work was simply brushed away in less than two pages.[xxix] While trans students are protected under certain Title IX provisions, this action “obfuscates schools’ obligations to transgender youth -- who face disproportionately high rates of bullying, harassment and discrimination -- and sends a dangerous message that the current administration will not enforce inclusive policies or stand up for them at school.”[xxx]

IV. How Could This Have Been Avoided?

 

          Other departments have interpreted “sex” in a way consistent with court decisions. The Equal Opportunity Employment Office (EEOC), similar to the DOE and DOJ, also chose to interpret “sex” in a way that covered LGBTQ+ people. Much like Title IX, the explicit statutory language of Title VII of the Civil Rights Act of 1964 (Title VII) is limited to the word “sex.”[xxxi] However, the difference between the EEOC’s interpretation and the Title IX interpretation is that the EEOC stated that “sex” includes discrimination on the basis of sex or gender stereotypes.[xxxii] There is ample case law that supports the determination that prohibitions against sex discrimination include discrimination on the basis of sex stereotypes (assuming someone should be heterosexual and treating them adversely because they are not).[xxxiii] Sex stereotypes have also been used to cover discrimination against trans individuals.[xxxiv] While interpreting statutory language in ways that are consistent with court decisions gives it more legal significance, the issue here is with the permanence of the interpretation.

 

          A much more effective and lasting way of extending protections to trans people would have been to effectuate this policy through rulemaking. Agency rulemaking goes through an arduous process in order to become an actual rule.[xxxv] However, because it must go through that process, it is much more difficult for an agency to modify or remove that rule. Both processes often require an opportunity for public input.[xxxvi] The agency is required to give the public sufficient notice to read through the proposed rulemaking and to comment with suggestions and opinions and the agency is also required to incorporate and respond to those comments.[xxxvii] The Department of Housing and Urban Development (HUD) actually extended protections to the LGBTQ+ community using the rulemaking process that resulted in the “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule.”[xxxviii] Because it went through this process, it will take much longer and be more difficult for the Trump administration to undo. More importantly, if this rule gets put on the chopping block, the public has the ability to fight it.

 

Conclusion

 

          The dignity and humanity of a marginalized group of people should not be subject to the whims of political partisanship. Because of the fickle nature of politics and politicians, it is ill advised to rely upon the government when seeking true equality and the eradication of oppression. Popular opinion has shown a marked shift toward the support of the trans community.[xxxix] This stark difference between what the people believe and what the government is doing truly reflects that “[n]ever in the history of the struggle against oppression in all its forms have we relied on the benevolence of the state. We have always, always relied on one another.”[xl]

As this country heads toward an uncertain future with an unforgiving government, it is important to remember: “Show love for one another. Keep one another safe. This is going to be painful, but it’s going to be okay.”[xli]

 

 

 

[1] See Sam Riedel, The Trans People Who Are Detransitioning To Stay Safe In Trump's America, The Establishment (Nov. 20, 2016), https://tinyurl.com/zpcyc7c.

 

 

2i] Obergefell v. Hodges, 135 S. Ct. 2584, 2584 (2015) (marriage is a fundamental right that extends to same gender couples).

 

 

[3] United States v. Windsor, 133 S. Ct. 2675, 2675 (2013) (overturning the Defense of Marriage Act).

 

 

[4] Lawrence v. Texas, 539 U.S. 558, 558 (2003) (overruling a Texas statute that criminalized gay intimate sexual conduct).

 

 

[5] The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249 (2009) (classifying crime motivated by perceived sexual orientation or gender as a hate crime).

 

 

[6] See Loretta Lynch’s statement on North Carolina bathroom, YouTube (May 9, 2016),

https://www.youtube.com/watch?v=qGcurCOBrZo. 

 

 

[7] Dominic Holden, White House Appoints First Transgender Person As Primary LGBT Liaison, BuzzFeed News (Mar. 14, 2016), https://tinyurl.com/h9mennb.

 

 

[8]  Katy Steinmetz, Being Transgender Is Not a Mental Disorder: Study, Time: Health (Jul. 26, 2016), https://tinyurl.com/hbsex49.

 

 

[9] See Trans Activist Sylvia Rivera at the 1973 Christopher Street Liberation Day rally, YouTube (last visted Feb. 19, 2017), https://www.youtube.com/watch?v=0lD75vnGc-E. (Sylvia Rivera’s statement lambasting the gay and lesbian attendees of the 1973 Christopher Street Liberation Day rally for continuously abandoning the trans community).

 

 

[10] White House, The Executive Branch, https://www.whitehouse.gov/1600/executive-branch (last visited Feb 19, 2017).

 

 

[11] USLegal, Procedural Rules; Policy Statements, https://tinyurl.com/hscavrq (last visited Feb. 19, 2017).

 

 

[12] See The Administrative Procedure Act, 5 U.S.C. §§ 551-559 (2012).

 

 

[13] USLegal, supra note 11.

 

 

[14] Id.

 

 

[15] White House, supra note 10.

 

 

[16] U.S. Department of Justice, Dear Colleague Letter on Transgender Students (May 13, 2016), https://tinyurl.com/hb7y7dv.

 

 

[17] Id.

 

 

[18] Id.

 

 

[19] Id.

 

 

[20] Chris Geidner, The Stories Behind America’s Transgender Progress In The Law, BuzzFeed News (Oct. 23, 2016), https://tinyurl.com/hls6348.

 

 

[21] Chris Johnson, DOJ nixes request to halt order against trans student protections, Washington Blade (Feb. 10, 2017), https://tinyurl.com/h4wqo2e.

 

 

[22] Id.

 

 

[23] G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 709 (4th Cir. Apr. 19, 2016), (mandate recalled and stayed, 136 S. Ct. 2442 (Aug. 3, 2016), cert. granted, 2016 WL 4565643 (Oct. 28, 2016)) (District court dismissed a Title IX sex discrimination claim brought by a trans high school student who was denied access to the boys' restroom).

 

 

[24] Erin Rook, Jeff Sessions’ DOJ withdraws request for stay of anti-transgender ruling, LGBTQ Nation (Feb. 11, 2017), https://tinyurl.com/zuks5a8; see Johnson, supra note 21.

 

 

[25] Johnson, supra note 21.

 

 

[26] Sarah McBride, Nearly 800 Parents of Trans Children Sign HRC’s Letter Condemning Trump Administration, HRC Blog (Feb. 15, 2017), https://tinyurl.com/grmo2fd.

 

 

[27] HRC Staff, BREAKING: In First 48 Hours, Sessions Seeks to Undermine Protections for Transgender Students, HRC Blog (Feb. 10, 2017), https://tinyurl.com/zarnjh5.

 

 

[28] Rob Flaherty, DISGRACEFUL: Trump Administration Puts Transgender Kids at Risk, HRC Blog (Feb. 22, 2017), https://tinyurl.com/zp64v5u.

 

 

[29] U.S. Department of Education, See Dear Colleague Letter (Feb. 22, 2017), https://tinyurl.com/j357ddr.

 

 

[30] Flaherty, supra note 28.

 

 

[31] Title VII of the Civil Rights Act of 1964, 42 U.S. Code § 2000e(k).

 

 

[32] U.S. Department of Housing and Urban Development, Fair Housing LGBT Page, https://tinyurl.com/h8wvydh (last visited Feb. 19, 2017).

 

 

[33] See Price Waterhouse v. Hopkins, 490 U.S. 228, 228 (1989) (Price Waterhouse denied Hopkins a promotion because other partners at the firm felt that she did not act as woman should act); Oncale v. Sundowner Offshore Services, 523 U.S. 75, 79 (1998) (same-sex harassment is discrimination under Title VII).

 

 

[34] Glenn v. Brumby, 663 F.3d 1312, 1312 (11th Cir. 2011) (the court held that the defendant discriminated against the plaintiff based on her sex by firing her because she was transgender).

 

 

[35] See 5 U.S.C. § 553.

 

 

[36] Id.

 

 

[37] Id.

 

 

[38] U.S. Department of Housing and Urban Development, HUD Issues Guidance on Multifamily Assisted and Insured Housing Based on Equal Access to Housing Rule, https://tinyurl.com/zqtm94b (last visited Feb. 19, 2017).

 

 

[39] David Crary & Rachel Zoll, Trump moves leave LGBT groups, religious conservatives wary, Crossroads Today (Feb. 8, 2017), https://tinyurl.com/h6v9xxo.

 

 

[40] Pustluk, The Transsexual Empire Strikes Back!, Tumblr (Nov. 9, 2016), https://tinyurl.com/jmkuvhc.

 

 

[41] Id.

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