Hello, friends. It’s time, once again, for a new edition of Boom! Lawyered.
I thought today I’d explain the basic issues surrounding the current bathroom panic that has half the nation clutching their pearls and taking to their fainting couches with a virulent case of the vapors.
If you’ve been reading my writing for Rewire, you might already have a pretty good grasp on the difference between Title IX and Title VII. You might even understand what “Auer deference” is.
But who among us couldn‘t use a clear and concise explainer?
So, I’m going to do this in a simple question-and-answer format. That way, you can bookmark this article and come back to it when you’re arguing with your grandpa about why trans women should be able to use public women’s restrooms, and that it’s really not that big of a deal, so why don’t you just calm down already, Gramps.
What is Title VII?
When you hear people talking about Title VII, they are talking about Title VII of the Civil Rights Act of 1964. Title VII says, “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The federal agency in charge of enforcing Title VII is the U.S. Equal Employment Opportunity Commission, or the EEOC for short. The EEOC is a bipartisan commission comprised of five members who are appointed by the president. Currently, four of the five commissioners were appointed by Barack Obama, and one was appointed by George W. Bush.
The EEOC investigates claims of discrimination against employers, including labor unions and state and local governments. If it is unable to resolve the claims through informal means, the commission may, if it chooses, pursue litigation. The results of litigation vary: The employer may be forced to change whatever discriminatory policy is at issue, or the employee may choose to receive damages and move on from the employer.
As part of its job, the EEOC issues regulations that implement federal workplace discrimination laws. These regulations are called “implementing regulations.” But the EEOC can’t just create rules and expect the public to abide by them. It has to first allow the public to provide comments on the regulation through a formal process called “notice and comment.” After the notice-and-comment period—the length of which can vary—is over, the commission votes on the regulations.
The EEOC also interprets how to enforce its implementing statute, Title VII, or interprets regulations it has already put in place.
What is Title IX?
Title IX of the Education Amendments of 1972 says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving financial assistance.”
Just as the EEOC is tasked with enforcing Title VII, the Department of Education is tasked with enforcing Title IX.
Under Title IX, not all distinctions based on sex are impermissible. For example, schools are permitted to segregate boys and girls in separate locker room and restroom facilities. There’s a regulation that permits the provision of “separate toilet, locker room, and shower facilities, on the basis of sex,” but requires that the facilities provided for one sex “be comparable to the facilities provided for the other sex.”
But the regulations don’t say what “sex” means. And so the Department of Education decided to clarify it recently and said that it includes gender identity.
And that’s why school districts and states around the country have taken leave of their senses, filing lawsuits in order to protect their right to discriminate against transgender students.
But didn’t these agencies just decide that “sex” in Title VII and Title IX includes gender identity? Can they do that? Isn’t that something Congress should do?
It depends on whether the separate decisions by the EEOC and the DOE constitute an interpretation of an existing rule or statute, or whether they constitute putting a new rule or statute into place.
It’s a bit tricky, but bear with me.
Under the Administrative Procedure Act, federal agencies have the authority to interpret regulations in order to provide guidance to people who need to comply with those regulations.
These are called “interpretive rules,” and they do not have to be put to the public for a notice-and-comment period.
Legislative rules, however, are like statutes and have the force of law. The birth control benefit, for example, is a legislative rule. That’s why the Department of Health and Human Services had to go through a notice-and-comment period and ultimately changed the rule multiple times to accommodate concerns of the public that the benefit was an infringement on religious freedom.
Interpretive rules do not have the force of law, meaning you couldn’t bring a lawsuit based on what the interpretive rule says, although you could bring a lawsuit based on the associated legislative rule.
So is the Obama administration making a rule that trans people must be permitted to use the bathroom that aligns with their gender identity, or is it interpreting an existing rule?
With respect to Title IX, the DOE issued a “Dear Colleague” letter—which it says is simply a guidance document, not a new rule. The regulations permitting separate bathrooms for boys and girls were unclear about where trans students fit, and the administration decided to let them decide for themselves based on their gender identity.
The Obama administration doesn’t think it’s a new rule, but rather an interpretation of an old one: It thinks Title IX already requires that educational institutions “generally must treat transgender students consistent with their gender identity,” and the guidance document tells schools what they need to do in order to comply with Title IX.
With respect to Title VII, the EEOC has held, in Lusardi v. Department of the Army, that “[e]qual access to restrooms is a significant, basic condition of employment, and that denying transgender individuals access to a restroom consistent with gender identity discriminates on the basis of sex in violation of Title VII.”
And both the DOE and the EEOC believe they are not required to go through a notice-and-comment period as long as their respective interpretations of Title VII and Title IX aren’t obviously contradicted by the statutes or implementing regulations.
And because of a rule—sometimes called the Auer/Seminole Rock doctrine, after two seminal cases, Auer v. Robbins and Bowles v. Seminole Rock—that requires deference to an agency’s interpretation of its own implementing statute and regulation, the DOE and EEOC believe they are well within their right to interpret the term “sex” in existing statutes and regulations as including “gender identity.”
Notably, last week, the Supreme Court declined to hear a case that might have upended the Auer/Seminole Rock rule and permitted a court to decide whether the DOE and EEOC interpretations of the term “sex” are accurate or not.
But why do they think “sex” includes gender identity?
Title IX and Title VII are analyzed under the same legal principles. And due to a landmark case in 1986, Price Waterhouse v. Hopkins, in which the Supreme Court held that gender stereotyping—in other words, not behaving or dressing according to arbitrary societal standards—constitutes discrimination on the basis of sex, the Obama administration thinks it has a good case that discrimination on the basis of trans status, i.e., prohibiting transgender people from using the correct bathroom due to arbitrary societal standards about sex being limited to “biological sex” as opposed to gender identity.
And because there’s no legislative history regarding what Congress meant by “sex,” and because of the Auer/Seminole Rock doctrine, both the EEOC and the DOE feel they can rightfully fold transgender people into the group of folks protected by Titles VII and IX.
So that ends today’s lesson. You’re now well-equipped to argue, with the law as your weapon, that the Obama administration did a good and legal thing when it decided to recognize the dignity of trans students, and you can tell everyone who is gripped by the bathroom panic to either calm down or suck it up.
See you in two weeks!