Education Week - June 8, 2016 - 22

Guidance on Transgender Students
A Clash Over Administrative Law
CONTINUED FROM PAGE 1

school districts, and two parents'
groups have filed lawsuits painting
the guidance in different terms.
"The new rules, regulations, guidance, and interpretations described
herein are 'rules' under" the federal Administrative Procedure Act,
or APA, says the suit against the
Obama administration filed last
month by Texas and 10 other states
or their officials. Such broad new
"rules" must at the very least go
through notice-and-comment procedures under the APA, the suit says.
But the suit quickly adds that
the transgender guidance goes "so
far beyond any reasonable reading
of the relevant Congressional text
such that the new rules, regulations, guidance, and interpretations
functionally exercise lawmaking
power reserved only to Congress."

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'Byzantine Rulemaking'

A separate suit filed by parents
in Palatine, Ill., against the U.S.
Education Department and the
local school district alleges that
the informal guidance suffers from
numerous procedural defects, and
it is, in reality, a "new legislative
rule."
"A legislative rule has the force of
law, and can be a drastic departure
from what the law said," argued J.
Matthew Sharp, a Lawrenceville,
Ga., lawyer for the Alliance Defending Freedom, the group that
edweek.org:
brought the Illinois suit, in an interview. "Those are the ones that have
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"None of what the Education De1

Education WEEk
Vol. 35, No. 29 * April

'New Contexts'
The transgender issue is casting
light on the "Byzantine rulemaking"
process Pruitt referred to.
Amy Wildermuth, a law professor at the University of Utah and
an authority on administrative law,
noted that as Congress has become
gridlocked on many issues, federal
agencies have asserted their administrative authority.
"Agencies filling the gaps are looking to the tools they have available
to them," she said.
Richard J. Pierce Jr., a law professor at George Washington University and another expert on
administrative law, said the key

stereotypes."
The Justice Department put it
another way in a brief filed in a Virginia case, G.G. v. Gloucester County
Schools, in which a transgender
student who identifies as a boy
sought to be able to use the boys'
restroom at his high school.
The department, in siding with
the boy who has been publicly identified as Gavin Grimm, said that
"for most of its existence, there was
no dispute about [the 1975 Title
IX regulation's] meaning; it was
understood simply to mean what
it says, i.e., that Title IX recipients
can provide separate boys' and girls'
facilities."
"It is only in recent years, as
schools have confronted the reality
that some students' gender identities do not align with their birthassigned sex, that schools have
begun citing [the regulation] as justification for enacting new policies
restricting transgender students

We have an agency jumping in to take action...
and it is looking around at the tools that
will allow it to do it."
AMY WILDERMUTH
University of Utah

27, 2016

bre Aking news dAilY

Photos by Brandon Thibodea

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Hope Yen, an AP Art History
right, to conduct a scaven
other digital tools, below
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22 | EDUCATION WEEK | June 8, 2016 | www.edweek.org

partment has mandated is in Title
IX," he added, "and no one can seriously argue that this is what Congress had in mind when it wrote the
law or when President [Richard]
Nixon signed it."

issues in the transgender lawsuits
are whether the guidance from the
Education Department is a "substantive," or legislative, rule, on the
one hand, or a less formal "interpretative" rule.
Legislative rules are usually
authorized by the act of Congress
itself, and typically fill in many
gaps in a statute. The Education
Department's recent proposed
regulations for the Every Student
Succeeds Act would be an example
of such a rule, which under the
APA must go through a notice-andcomment procedure and meet other
requirements.
The transgender guidance is an
example, at least in the administration's view, of an interpretative
rule. The Education Department
is interpreting is own regulations
under Title IX, in this instance a
1975 regulation making clear that
schools could keep separate bathrooms for girls and boys.
Dorie Nolt, a spokeswoman for
the Education Department, said
officials would not be available to
expand on the May 13 Dear Colleague letter, but in an email, she
emphasized that "in policy guidance, complaint resolutions, and
briefs filed in recent years," the
Justice Department and the Education Department's office for civil
rights has consistently interpreted
Title IX "as protecting all students,
including LGBT students, from discrimination based on sex, including discrimination and harassment
based on gender identity and sex

to facilities based on their 'birth'
or 'biological' sex," the department
continued. "It is to those newfound
policies that ED's interpretation of
the regulation responds."
"Providing guidance on how its
regulations apply in new contexts
is precisely the role of a federal
agency," the brief said.

French Philosophy 101
The U.S. Court of Appeals for
the 4th Circuit, in Richmond, Va.,
sided with the transgender student
and the Obama administration in
its April 19 decision, saying the
Education Department's guidance
on the issue was owed deference
under principles of administrative
law.
The court applied what is known
in administrative law as "Auer
deference," based on a 1997 U.S.
Supreme Court known as Auer v.
Robbins.
"Auer requires that an agency's
interpretation of its own ambiguous regulation be given controlling
weight unless the interpretation is
plainly erroneous or inconsistent
with the regulation or statute,"
U.S. Circuit Judge Henry F. Floyd
wrote for the 4th Circuit court
panel in the Gloucester County
case. "Agency interpretations need
not be well-settled or long-standing
to be entitled to deference. They
must, however, reflect the agency's
fair and considered judgment on the
matter in question."
The Education Department's in-

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