The 5/13/16 Dear Colleague letter of the DOJ & DOE re Student Transgender RIghts is Lawful

Thank you, Con, for joining me in this debate! Con recasts and collapses my five points into two straw men. Con then simply repeats, verbatim, the complaint filed in the Texas lawsuit I referenced. Let"s go back to my five points. 1.Issuance of DCLs by such agencies is commonplace. Con recasts this argument as if I said this was some kind of majority rules proposition. That was not my point. My only point is that there is nothing inherently unlawful about DCL"s per se. They are issued all the time without controversy. Con provides no authority that DCL"s are inherently unlawful. Therefore, Con must establish that something about this particular DCL is unlawful. 2.This DCL did not purport to expand existing statutes, e.g. the Title IX of the U.S. Educational Amendments of 1972. Con drops this argument and none of the 10 allegations cited in the Texas case and reposted by Con address this fact. The DCL could not and expressly said it did not purport to change existing law. To the contrary, it provided agency interpretation of existing law. 3.Any state or school which disagrees with this DCL can either (i) disregard the DCL or (ii) seek relief in court. This is another argument ignored by Con. In fact, Con proves this point by showing that some states are challenging DOE and DOJ positions. 4.The guidance provided by this DCL was consistent with earlier positions taken by both the DOE & DOJ. The argument is ignored. If there is something unlawful with the DOE"s position, the DCL"s restatement of that position with more specificity is not unlawful. 5.The guidance provided by this DCL was consistent with an evolving body of federal law. I cited to the ONLY circuit court precedent on the bathroom issue " Grim v. Gloucester. Con cites to the flimsy allegations contained the states" complaint. Con loses at the outset by not understanding that the "counts" of a complaint are not evidence. A complaint by any party in court sets out allegations of a plaintiff. At this point in the process, no proof is provided, no evidence cited, therefore, these arguments should be rejected at the outset for want of any evidence. As I will also show, many of these allegations were rebutted already in my argument. Con then cites the allegations in the Texas lawsuit: Count 1 Did not follow proper procedure in implementation. Did so without observing as required by law notice of comment rule making period. The procedural argument the states are making invokes the Administrative Procedures Act ("APA"). " 5 U.S.C. "551. Any further discussion of federal rule making by any agency should refer to the APA and the case law interpreting the APA. Fortunately, just last year we had a SCOTUS decision on point " Perez v. Mortgage Bankers Association. Perez explained: "The APA distinguishes between two types of rules: So-called "legislative rules" are issued through notice-and-comment rule making, see ""553(b), (c), and have the "force and effect of law," Chrysler Corp. v. Brown, 441 U. S. 281, 302"303. "Interpretive rules," by contrast, are "issued . . . to advise the public of the agency"s construction of the statutes and rules which it administers," Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99, do not require notice-and comment rule making, and "do not have the force and effect of law," ibid." See, http://www.supremecourt.gov... . Con gives no argument as to how the DCL would create new law instead of being, as it states on its face, limited to advising the public as to how the DOE and DOJ construe laws and rules which they administer. As I argued already, in Grim v. Gloucester, the DOE and DOJ"s position re restrooms (and that was not all that was in this DCL although it gets the most attention), was affirmed by the only United States Circuit Court of Appeals to yet address the issue. Therefore, the DOE and DOJ are taking a position which is, at the very least, supported by a good faith position in existing law. Count 2: It is not supported by legislative intent as documented in the Congressional Record This is interesting. Actually, "sex" was added to the 1964 Civil Rights Act on Saturday, February 8, 1964, by an avid segregationist. (Note my earlier citations that Title VII case law is used to interpret Title IX). Later cases (see Ulane v. Eastern Airlines), have stated that this was a ploy to scuttle the entire bill. On this basis, if we look to mere intent of the person who proposed to amend the law to add "sex" discrimination, we would not enforce sex discrimination at all. While it is true there is no reference in the legislative debate to transgender rights, neither was their discussion of the right of men to be free from male-on-male sexual harassment. Even so, Justice Scalia found such a right in the Oncale decision he authored. There was not discussion of sex stereotyping. Does an employer get to say that an African American can be fired because he acts "too black," i.e. his presentation is too consistent with the stereotypes of African Americans in a given place and day. Would it be sex discrimination to fire a woman who is too "macho?" SCOTUS emphatically said no in Pricewaterhouse v. Hopkins. Words have power and we have declared in various areas that we are not going to allow sex discrimination. What that means in contexts not envisioned in 1964 (Title VII) or 1972 (Title IX), is left to the Courts for interpretation. Courts rightly often defer to the interpretation by the agency which has been charged by statute with enforcing that law. "One of the most important principals in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable." See, https://www.law.cornell.edu... Therefore, it is true that the DOE"s interpretation of Title IX is given deference where the law is ambiguous. Far from being unlawful, this "one of the most important principals in administrative law." Count 3: Infringes on the separation of powers doctrine in that the executive branch is usurping legislative powers. And it also infringes on the 10th Amendment which reserves to the states rights not enumerated to the Federal government nor prohibited elsewhere in the constitution to the states. These reserved rights include general police powers. This argument assumes that there is no legal basis for the DOE and DOJ"s interpretation. I have already explained, citing the Grim case, how this is not true. If the states are arguing that Title IX itself is unconstitutional, good luck with that argument! Count 4: It infringes on the Equal Protection Clause of the 14th Amendment by imposing different requirements on different groups of persons. Con does not explain how this is true. If anything, this DCL would promote consistency in the treatment of all persons by eliminating uncertainty as to how the DOE and DOJ interpret title IX. Count 5: It unlawfully abrogates state sovereign immunity. This can be done only if there has been Congressional findings of invidious discrimination. There have been no such findings Con fails to provide a source or justification to explain the applicability of sovereign immunity against the federal government. I will not make his argument but if he is referring to the APA, I have already explained why this is not a rule making. I can find no authority that an agency must make such a finding when it is merely providing guidance as to its own interpretation of law, particularly where that interpretation has already been accepted by the only circuit court to consider the issue. Counts 6 and 7: It is arbitrary and capricious in addition to being an abuse of discretion and is not in accordance with existing statutory and case law Con does not explain how this is true. I have shown you some of the case law. If Con had given any references at all, we could have had a more detailed discussion. Count 8: It violates the constitutional requirement of clear notice. Under the Spending Clause anyone accepting federal funds must be aware from the language in the Congressional authorization the requirements for accepting such funds. Any ex post interpretation which is contrary to the original intent is unlawful. No authority is provided. I can only assume that Con is referring to the law under Arlington Central School District Board of Educ. v. Murphy. This was an argument rejected by the 4th Circuit in Grim. Here is a link where Texas filed an unsuccessful amicus brief under the same grounds: https://www.texasattorneygeneral.gov... Count 9: It is unlawfully and unconstitutionally coercive. The penalty both implicitly and explicitly threatened by the letter is simply too severe. The loss of federal funds will have a broad and unfairly negative impact on a broad range of children most if not all of them have little or no responsibility for discriminatory practices against transgender students. I do not understand this allegation. The denial of federal funds where there has been a Title IX violation was the basis for providing parity to women in athletics. Count 10 It was issued without the proper regulatory flexibility analysis No source is provided and I am reluctant to create another straw man to attack. However, the Regulatory Flexibility Act applies where a federal agency is "adopting regulations." No regulation has been adopted. All the DCL did is provide guidance as to its own belief as to how Title IX operates in this specific context.