Last Friday, the Obama administration sent a “Dear Colleague” letter to public schools advising that Title IX—which bans sex-based discrimination in federally funded schools—requires them to allow transgender students to use restroom and locker room facilities that align with their gender identity. If they don’t, they risk their federal funding. This has, of course, caused much consternation among conservative commentators, legal scholars, and anyone else who would apparently deny transgender people the safety and personal dignity of using the bathroom that is correct for them.
Yale Law School emeritus professor Peter Schuck is one such legal scholar. In an op-ed published Wednesday in the New York Times, he wrote that the Obama administration issued the “Dear Colleague” letter in violation of the Administrative Procedure Act (APA). Just another example of the culture of lawlessness that President Obama has engendered by forcing us to treat transgender people with respect. How dare he.
Schuck claimed that the APA requires the government to “invite the public to join the specific policy conversation before any rule is issued, by publishing the proposed policy, explaining its rationale, soliciting public comments on it and seriously considering those comments before deciding on a rule.”
Nope. He’s wrong. And that’s because the “Dear Colleague letter” is a guidance document that doesn’t have the force and effect of law. The letter even says as much. A school’s obligation to treat transgender students the same as they treat cisgender students is already built into Title IX. But since some schools seem to be confused about what their obligations to transgender students are, the Department of Justice (DOJ) and Department of Education (DOE) issued the “Dear Colleague” letter to help out.
Perhaps a brief description of the APA is in order.
Passed in 1946, the APA is a federal statute that governs the process by which agencies like the DOE develop and issue regulations. The main rule that agencies need to follow is that they must allow for a period of notice-and-comment before putting rules into effect. The public is given the opportunity to comment on a proposed rule, and the agency is given an opportunity to respond to those comments and revise the rules based on the public comments, if necessary.
The APA lays out a three-step procedure for “notice-and-comment rule making.”
First, the agency is required to issue a “[g]eneral notice of proposed rule making,” usually by publication in the Federal Register, which is an official journal containing government agency rules, proposed rules, and public notices. Second, the agency must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” And finally, when the agency puts the final rule into effect, it must include “a concise general statement of [the rule’s] basis and purpose.”
Rules that an agency issues through the notice-and-comment process are frequently referred to as “legislative rules” because they have the force and effect of law, meaning they are akin to statutes passed by Congress.
Not every rule must follow the notice-and-comment process, however. The APA specifically exempts interpretative rules and an agency’s general statements of policy, as the Supreme Court most recently noted in 2015’s Perez v. Mortgage Bankers Association.
In Perez, the Supreme Court noted that “the critical feature of interpretive rules is that they are ‘issued by an agency to advise the public of the agency’s construction of statutes and rules which it administers.’” It is certainly easier for an agency like the Department of Education to issue interpretive rules than it is to issue legislative rules; the notice-and-comment period can be arduous. For example, the notice-and-comment process that accompanied the Department of Health and Human Services’ effort to roll out the birth control benefit—the Obama administration’s issuance of the rules regarding the ACA’s requirement that employers provide health insurance plans offering coverage for birth control—was time-consuming. There were multiple notice-and-comment periods, both before and after the Supreme Court issued its ruling in Burwell v. Hobby Lobby.
But, as the Supreme Court noted in Perez, “That convenience comes at a price: Interpretive rules ‘do not have the force and effect of law.’”
In other words, you couldn’t bring a lawsuit based on the contents of the guidance document.
But, you may be asking, doesn’t the guidance document have the force and effect of law to the extent that a school’s refusal to grant trans people bathroom access puts that school’s federal funding at risk?
Well, no. Not really. The guidance document simply explains or interprets what the law already does. The law already requires schools to grant trans students bathroom access. The “Dear Colleague” letter simply, as it said, “summarizes a school’s Title IX obligations regarding transgender students and explains how the [DOE and DOJ] evaluate a school’s compliance with these obligations.”
Peter Schuck’s op-ed ignored the difference between legislative rules and interpretive rules. It said that the Obama administration “has ignored” the notice-and-comment period, and “aborted a much-needed public debate over whether identity-based bathroom use can and should be regulated as a legal right, or merely left as an option.” He didn’t so much as mention Perez, and I find it hard to believe that a professor at Yale Law School is not aware of it.
What is more likely, I think, is that Schuck is giving cover to the people who believe that transgender civil rights should be put up to a vote or put before the public so that they can ask questions “before making up their minds.” One such question is, as he wrote, “how many transgender people actually experience indignity when using traditional bathrooms, and what is the nature of this indignity.” Setting aside the fact that “traditional bathrooms” is an odd phrase—what constitutes a nontraditional bathroom?—whether transgender people actually experience indignity is irrelevant when it comes to civil rights.
And we shouldn’t put the rights of oppressed people up to a vote, because we can’t trust that the tyrannical majority will do the right thing. (This is why I have advocated that transgender people be deemed a suspect class so that they will be entitled to constitutional protection under the Equal Protection Clause.)
Schuck seems to advocate that everyone just take a step back and breathe. Hold on a minute, he seems to be arguing. Everything is happening so fast, and we have to give ordinary Americans time to get on the trans bathroom equality train—Americans who until last week, according to Schuck, had not considered bathroom access to be a civil rights issue.
In Schuck’s view, advocates for trans equality are being pushy and ignoring other valid concerns about privacy and modesty: “The only value in play here is transgender people’s desire to affirm their gender identity during their few minutes of bathroom use,” he said about the Dear Colleague letter. “All other concerns—about privacy and modesty in a setting that most people consider almost as safe and intimate as their bedrooms—are beside the point.”
Um, excuse me? Since when do people consider public restrooms as safe and intimate as their bedrooms? Indeed, how could one possibly have a reasonable expectation of privacy in a public bathroom? It doesn’t make a whole lot of sense.
Moreover, to the extent that people do consider a bathroom to be “safe and intimate,” transgender people aren’t afforded that same luxury: They are assaulted and harassed in bathrooms at an alarming rate. According to a 2008 study, 70 percent of surveyed transgender people reported being denied entrance, harassed, or assaulted when trying to use the bathroom that aligns with their gender identity.
Perhaps Shuck is referring to the Larry Craigs of the world—those brave bathroom stall toe-tappers searching for intimacy, and indeed glory (pun intended), in a public restroom. Maybe they see public restrooms as intimate as their bedrooms, given the activities in which they engage in public restrooms are similar to those that most of Americans engage in their bedrooms. I’m fairly sure that most of us just want to get in and out of a public restroom without incident.
One can imagine similar arguments being made during Jim Crow. Indeed, much of the rationale for denying transgender people bathroom access echo rationales offered for racial segregation in public restrooms.
During Jim Crow, white women were afraid that if they had to use the same toilet seats as Black women, they would catch venereal diseases. (Because Black women are sexually promiscuous and filthy, obviously.) In order to protect the virtue of white women, it was necessary to keep them segregated from sexually promiscuous and filthy Black women who were teeming with sexually transmitted diseases. As Gillian Frank wrote in Slate:
While segregationists frequently claimed racial integration would grant black men sexual access to white women, white women also emphasized that contact with black women in bathrooms would infect them with venereal diseases. White women refused to share bathrooms with black women throughout the South and also in places like Detroit, which was flooded with white and black Southern transplants during the war years. Claiming that racial integration with blacks would cause them to catch syphilis from shared toilet seats and towels in public restrooms, white women engaged in numerous labor strikes and walkouts to resist [Federal Employment Practices Committee] policies. Their black co-workers doubtlessly faced harassment and intimidation throughout these conflicts.
Similar nefarious forces are at work here. Politicians are framing legislation permitting transgender bathroom access as providing sexual access to women and children in bathrooms. Others are expressing their discomfort at sharing restroom facilities with a transgender person, stemming from pernicious stereotypes about transgender people being sexually deviant and sexual predators.
Ultimately, the law is under no obligation to recognize the discomfort of people who would rather not use the bathroom with a transgender person, and contrary to Schuck’s claims, the Obama administration is under no obligation to ask the public to weigh in on an interpretation of existing law.
That’s not a job for the public, and the public—or at least the portion panicking about trans people using the bathroom—is just going to have to get over it.