Back in May, when the Obama administration issued guidelines to schools about accommodating transgender students, the path ahead was predictable. Supporters of the directive would cheer it as a step forward in protecting the vulnerable. Opponents would label it “executive overreach,” and they would sue.
Such is what’s happened with other executive orders, most notably those involving the Obama administration and immigration. These days it’s the courts, not Congress, that often have the final word on policies.
So it is with the administration’s guidance on transgender students. Last week, a federal judge in Texas sided with more than a dozen states and blocked the U.S. Department of Education from implementing guidance on school bathrooms and locker rooms. That’s unfortunate. We agree with the administration’s transgender guidelines, which protect students from the very real bullying they face at schools. Districts across the country have shown they can adopt such policies without violating privacy or forcing anyone to see someone else’s genitalia.
But that doesn’t make the administration’s directive legal. In fact, its opponents have a strong case on at least a couple of levels.
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First, the states say the administration has wrongly included sexual identity in the “sex discrimination” banned by Title IX of the Education Amendments of 1972. At that time, the states argue, “sex” referred to the physiological characteristics of students, not the gender with which they identified. Also, opponents say Title IX was written to protect female students from discrimination in classrooms or on sports teams, not bathrooms.
Both are important because courts give great weight to legislative intent (remember, that’s what saved Obamacare’s tax credits from being wiped out by a technicality in King v. Burwell.)
The states also make a procedural argument: In issuing the transgender guidelines, the administration ignored federal rules that require a full public comment period first. That’s nitpicky, but it’s valid. Those rules were put in place more than 70 years ago so that the executive branch couldn’t adopt new policies without the public getting some say in the matter.
All of which speaks to the tug that has regularly confronted this administration: Congress, not the president, is supposed to be the vehicle for changing and adopting significant policy. But this Congress has not been inclined to support big policies the President favors.
That means if the administration wants to get anything done, it has to creatively interpret existing law to make its case. Sometimes, the courts don’t agree.
Our expectation is that transgender discrimination law will eventually be decided by the U.S. Supreme Court. Our hope is that justices take a bigger picture approach, just as they did last year with same-sex marriage in Obergefell v. Hodges. Then, the court determined that rights granted by the Fourteenth Amendment’s Due Process Clause extend “to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”
The same should be true with transgender individuals. We wish Congress and states, including North Carolina, would recognize that. We’ll settle for the courts.