Commentary Abortion

Virginia Attorney General Oversteps His Role, and the Law, In Asserting “Veto” Power in TRAP Regulatory Process

Katherine Greenier

Board members faced with “legal advice” from the AG’s office that is clearly informed more by political objectives than legal principles should decline to follow it and take whatever action is necessary to see that the regulations that they believe are in the best interests of Virginians are published and implemented.

During the recent Board of Health vote on June 15 regarding new rules for women’s health centers that provide abortion care, a heated debate arose between Board members and representatives of the Attorney General’s Office over the authority of the Board to amend the new rules so that existing women’s health care centers would be “grandfathered in,” rather than subjected to onerous and unnecessary building requirements that are only meant for the construction of new facilities.

This week, the ACLU of Virginia sent a letter to State Health Commissioner Dr. Karen Remley and members of the Board of Health explaining that, while the Attorney General has the responsibility to review proposed regulations to determine if the Board has the authority to adopt them, the law does not give his Office veto power over the Board’s policy decisions about what to include in the final rules.   

The Attorney General has two roles to play when a state agency is considering the adoption of regulations.  One is to provide legal advice, as the Board’s lawyer. As its counsel, the AG’s advice can inform the Board’s action, but it cannot and should not decide it or force the adoption of one legally defensible policy over another. 

The second role the Attorney General plays is to “certify” on the public record whether the Board has the authority to adopt the rules under consideration. In this case, there is no credible legal basis for the Attorney General’s assertion that the Board does not have the authority to issue a regulation that excepts existing health care facilities from meeting construction and building codes adopted after they were built.  By threatening to refuse to “certify” the Board’s authority, the Attorney General essentially has claimed veto power over the Board’s policy decisions – a threat that is intended to force the Board to rewrite the rules to suit the AG’s policy objectives. That is not the AG’s job, however. 

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Moreover, the AG is wrong on the law.  There is nothing in the Code (or the recently enacted law, Senate Bill 924, defining abortion providers as hospitals) that requires the Board to impose extensive, burdensome construction requirements that have no relation to the safety of the services that women’s health centers provide. This is particularly clear since the AG’s forced interpretation of the law in this instance is at odds with every other regulation of health care facilities, and far from consistent with prior interpretations of the law at issue.

This latest action from the Attorney General is yet another attempt to advance the Attorney General’s personal anti-choice ideology in this ongoing regulatory process.  Documents obtained through a Freedom of Information Act request revealed that the AG’s office intervened in the drafting of the emergency regulations of women’s health centers that provide abortion care. The AG forced inclusion of medically irrelevant requirements in the draft proposed rules that had been rejected by the Department of Health’s appointed medical panel, including the medical panel’s recommendation that the regulations stipulate that new construction physical requirements not apply to existing health centers.

Moreover, this is not the first time the Attorney General has overstepped his role as counsel by seeking to dictate his view of what state policies should be through the regulatory process. Last year, regarding new rules for protection from discrimination in non-residential and residential programs operated under the Department of Juvenile Justice, the AG’s Office representative told the Board of Juvenile Justice that, as a matter of “policy,” the Office would not certify any regulation that contained the words “sexual orientation,” arguing that the Board was without authority to  achieve the goal of protecting vulnerable children from discrimination on the basis of sexual orientation by “creating a protected class.” However, the Office made no effort to work with that Department to find a way to exercise their inherent power and responsibility to protect the constitutional rights of the youth who are their special concern.

The AG’s Office made the same assertions regarding the scope of a policy board’s authority when the Board of Social Services sought to adopt rules that would have protected Virginians seeking to adopt or foster children, and children eligible for adoption or foster care, from discrimination by licensed child placing agencies based on race, national origin, ethnicity, gender, age, religion, political beliefs, sexual orientation, disability and family status. 

Finally, the same kind of policy position was reflected in the letter the AG sent to the boards of Virginia’s public colleges and universities asserting that they did not have authority to adopt policies prohibiting discrimination based on sexual orientation against students, faculty and staff.

No matter the agency or the topic of regulatory action, the Attorney General does not and should not have veto power over policy decisions delegated to citizen boards by the legislature regarding what to include in final rules. Board members faced with “legal advice” from the AG’s office that is clearly informed more by political objectives than legal principles should decline to follow it and take whatever action is necessary to see that the regulations that they believe are in the best interests of Virginians are published and implemented. 

A copy of the ACLU’s letter can be found online

News Law and Policy

Virginia School Board Asks Supreme Court to Step In on Trans Rights

Jessica Mason Pieklo

Attorneys representing a Virginia school board want the Supreme Court to block the Obama administration's efforts at protecting transgender students.

Lawyers for a Virginia school district, according to a Tuesday filing, will ask the Supreme Court to intervene in the case of a transgender student who has sued for the right to use school bathrooms consistent with his gender identity.

The case involves Gavin Grimm, a transgender student who sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender.” Grimm’s attorneys argue that the rule, which effectively expels transgender students from communal restrooms and requires them to use “alternative” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy, but the lower court refused, ruling the school board’s policy did not violate the ban on sex discrimination in Title IX. The lower court also ruled the privacy interests of other students outweighed potential harm to Grimm in using a different bathroom. Grimm’s attorneys appealed.

In the interim, the Obama administration stepped in filing an appellate brief on Grimm’s behalf and arguing the Department of Education’s official position was that Title IX protected Grimm’s rights to use a restroom consistent with his gender identity. And in April, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Grimm, holding “the [Education] Department’s interpretation of its own regulation … as it relates to restroom access by transgender individuals, is entitled to … deference and is to be accorded controlling weight in this case.”

The full panel of judges for the Fourth Circuit refused in May to rehear the case, leaving in place the original order.

The petition to be filed with the Roberts Court asks the justices to re-examine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent states federal agencies like the Department of Education have substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX.

Earlier this term the Court turned away a similar challenge to the Department of Education’s interpretation of its regulations with regards to student loan financing.

According to attorneys for the school board, the Roberts Court must take up the Grimm case because the fight over transgender student bathroom access “raises fundamental issues of bodily privacy rights” in addition to serious questions about agency authority and constitutional separation of powers.

The petition will also ask the Roberts Court to issue a stay of the Fourth Circuit decision.

Attorneys representing Grimm will have an opportunity to respond to the filing. Given the Roberts’ Court current calendar, should the Court agree to take the case, the earliest it would hear arguments is next year.


Transgender Rights Notch a Legislative Win in Massachusetts

Michelle D. Anderson

Mason J. Dunn, executive director of the Massachusetts Transgender Political Coalition, said that the legislation is important for Massachusetts because it provides necessary protections for transgender people in public spaces, such as hospitals, restaurants, hotels, and parks.

The Massachusetts house on Wednesday overwhelmingly passed legislation that expands an anti-discrimination law giving transgender people protections in public spaces such as bathrooms, libraries, and hospitals.

Passage of the anti-discrimination measure comes as transgender rights have come under attack in Republican-held legislatures across the country.

Massachusetts’ Democratic-dominated house voted 116 to 36 to pass HB 4343, known as An Act Relative to Transgender Anti-Discrimination.

State Sen. Sonia Chang-Diaz (D-Boston) introduced SB 735, her chamber’s version of the legislation. Senators approved that bill in a 33-4 vote on May 12. State legislators will work to reconcile the differences between the anti-discrimination laws passed in each chamber.

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Unlike the state senate version of the bill, HB 4343 includes a provision stating that the Massachusetts Commission Against Discrimination will adopt, amend, and make recommendations for the act, including when and how gender identity may be evidenced.

It says the state’s attorney general’s office, led by Maura Healey, should issue regulations or guidance for “referring to the appropriate law enforcement agency or other authority for legal action [for] any person who asserts gender identity for an improper purpose.”

House leaders said the measure was assurance that transgender people wouldn’t be burdened with proving their gender identity, according to a Boston Globe report.

Throughout the early afternoon and evening hours, lawmakers proposed dozens of amendments that often criminalized transgender people, according to social media accounts by the ACLU of Massachusetts and Freedom Massachusetts, a statewide anti-discrimination bipartisan campaign.

All of the amendments were struck down and lawmakers passed the legislation as it was introduced.

The law is slated to go in effect on January 1, 2017.

Massachusetts Gov. Charlie Baker (R) said in an interview with the Globe the day before the house vote that he would sign the house’s transgender public accommodations law.

Baker had maintained a more ambiguous stance on the bill and was even booed at an LGBTQ networking event after he refused to show outright support for the bill, according to the Globe.

Baker recently changed his mind.

“We’ve certainly listened to a variety of points of view from many sides and have said, from the beginning, that we don’t want people to be discriminated against,” Baker told the Globe. “If the house bill were to pass in its current form, yeah, I would sign it.”

Mason J. Dunn, executive director of the Massachusetts Transgender Political Coalition (MassTPC), said in an email to Rewire that the legislation is important for Massachusetts because it provides necessary protections for transgender people in public spaces, such as hospitals, restaurants, hotels, and parks.

“We know that trans people face disproportionate amounts of harassment and discrimination in these places. In 2014, we saw that 65 percent of surveyed trans people reported experiencing discrimination in public spaces,” Dunn said, adding that “this legislation will ensure that these incidents have legal remedies under Massachusetts law.”

Dunn said state lawmakers could improve the quality of life for transgender people by supporting another bill before the legislature that would prohibit conversion therapy.

Mass TPC, Dunn said, has organized community meetings, phone banks, and action events in collaboration with Freedom Massachusetts to push the transgender-friendly measures.

HB 4343 goes back about five years ago, when Mass TPC advocated for a law that would provide legal protections to transgender and gender non-conforming people in the areas of credit, housing, employment, and public education.

Advocates and transgender-friendly politicians had passed the bill in 2011, but the law did not include protections in public accommodations, or spaces open to the public. Last year advocates began pushing for gender identity to be included in the state’s law for public accommodations.

The ACLU of Massachusetts in a statement said the house’s historic Wednesday vote brings the state another step closer to protecting the rights of all residents and sends a powerful message that the state “is a place of equality, opportunity, and community.”