Federal rule dispute a key element of transgender case
(District of Columbia) On the surface, the suit pending before the U.S. Supreme Court over bathrooms and transgender students would seem to be a straight-forward conflict over civil rights. But some experts believe the case brings forward a far different argument over the limits of federal rulemaking.
A key foundation for the legal challenge being brought by a Virginia teen over the use of campus bathrooms is based on an interpretation of federal law issued by the Obama administration last spring–the same one that was rescinded last week by the new Attorney General Jeff Sessions and new U.S. Education Secretary Betsy DeVos.
Sent to states and school districts across the country, the Obama letter opined that it was the position of the federal government that students in the public schools had a right to be treated according to the gender identity, not their gender at birth.
The directive, coming in the form of a “Dear Colleague” letter, didn’t have the power of law, but it did carry the threat of legal and fiscal sanctions so severe that it served basically the same purpose. The letter was also one form of a system of rule increasingly used by the executive branch to cudgel state and local governments into compliance on a wide range of policy goals that may or may not be spelled out in statute.
It is this form of bureaucratic governance that some say members of the Supreme Court want to dig into as part of the proceedings surrounding Gloucester County School Board v. GG.
“The reason the Supreme Court agreed to take this case, I think, is only in part due to the civil rights issue relating to transgender students,” said Sloan Simmons, a partner in the education law firm of Lozano Smith, based in Sacramento.
“For years, various members of the Supreme Court have wanted to return to the issue of the appropriate level of deference that must be given to the interpretation of the law by federal agencies,” he said. “While the headline on the case is that on transgender student rights, I think the piece that the Supreme Court may really want to dig into is the appropriate degree of deference courts should grant a federal agency’s interpretation of the law.”
A part of daily life for district administrators and state officials, the Dear Colleague letters from the U.S. Department of Education have typically been issued to help clarify complex areas of federal law, especially as it relates to spending and accounting. But during the Obama administration, the letters began to take on more controversial issues and press for more immediate changes.
The letters fall into a category of federal communications known as “significant guidance documents.” The most recent authority for issuing them comes from a 2007 order from the Office of Federal rule dispute a key element of transgender case :: SI&A Cabinet Report :: The Essential Resource for Superintendents and the Cabinet: