An Unlikely Transgender Rights Vanguard

As necessary as queer legal protections are, we should be cautious of transgender equality by legislative interpretation.

When considering the legal system, most people conjure images of criminal trials ripped from Law and Order. People probably know that there’s a separate civil system where you can sue, but I don’t usually remember to include the vast constellation of federal (and state and municipal) agencies in my image of the legal system, even though they have the power to adjudicate within their defined area of the law. Beyond all the laws on the books and in the courts, we’re also governed by a massive apparatus of administrative rules.

And like laws, rules can change. Last week, the Department of Education’s Office for Civil Rights released new guidelines covering gender identity-based discrimination under Title IX.

The news has been rightly heralded by transgender rights advocates as a major breakthrough in legal protections for trans* kids in public school, and follows similar efforts in New York City and California to protect trans* students from various forms of bullying and allow them to choose which bathrooms and sports facilities they’re most comfortable using. The critical line reads: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” My butch heart is all aflutter.

It’s good news, but it’s not new law, at least not technically. In fact, it’s not even an administrative rule, which is subject to a six-part review process including public comment. Rather, this is yet another ambiguously defined internal document called a guideline. Bear with me, it gets interesting.

Turns out the Office for Civil Rights took its lead from a 2007 OMB bulletin to all the administrative agencies. Evidently pressure was growing to define “guidance documents,” since they weren’t subject to the same review process as rules, and this bulletin was the final word on what constitutes a guidance document, who can make one, and best practices for an approval process.

Buried in what I highly recommend you don’t bother reading is a terrific quote from the DC Circuit Court of Appeals decision in Appalachian Power v. EPA (1999), which summarizes the issue far better than I could:

The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations.

One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation . . . The agency may also think there is another advantage — immunizing its lawmaking from judicial review.

The tension here is clear: On the one hand are the expediencies of running a huge bureaucracy whose actions are accountable to the laws which established them and the Constitution, but not much else. On the other hand is representative democracy, which has a lot of strong ideas about public participation in governance. Say what you will about the public comment period (and I’m sure many have — I’d love to see some numbers on how much those comments ultimately matter), it’s not the way the Constitution lays out lawmaking.

As welcome, and indeed necessary, as queer legal protections are, we should be cautious about endorsing the discretionary interpretation of law by agencies. There’s nothing to say that they couldn’t just as easily have had opposite findings in these cases, thus perpetuating legal discrimination without any input from Congress, the President, or the courts. As the court wrote above, it’s a subversion of the democratic system.

Another way to look at this is to ask how laws differ practically from administrative rules. Technically, one has authority and the other clarifies use of that authority. Courts aren’t bound by rules and guidelines, for example. On the ground, things look different. For a trans student defending his right to the boy’s locker room, or a trans woman defending her right to employment, administrative guidelines can have strikingly “law-like” impact by creating legal grounds to seek recourse.

Legal scholars have only started to address the question of how we got to this system of shadow laws. From what has been written, we do know that this DOE regulation isn’t the first time an agency interpretation has been out ahead of federal law or courts. This Virginia Law Review article showed, for example, that the FCC used its own vanguard interpretation of equal protection in the 1960s to withhold licenses if broadcasters used discriminatory hiring practices.

In fact, Tuesday’s DOE announcement isn’t even the first time in the past few years that an agency has interpreted federal law to protect trans* and queer people without the cover of court precedent: A series of decisions at the Equal Employment Opportunity Commission found that Title VII of the 1964 Civil Rights Act protects against gender identity-based and gender presentation-based discrimination. In a settlement last year between a California school district and a trans student, the Department of Justice actually cited those cases, as Chris Geidner has pointed out.

When the Employment Non-Discrimination Act has failed to pass for nearly a decade, these advances feel like a rare step forward in the fight against transphobia. They also raise troubling questions about administrative discretion and authority. Hopefully we’ll find out that where agencies lead, courts will follow.