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

The May 13, 2016 Dear Colleague Letter ("DCL") by the DOJ and DOE regarding the rights of transgender students was lawful. 1.Issuance of DCLs by such agencies is commonplace. A quick Google search reveals that DCLs are often issued. For example, they have been issued by the DOE on issues such as the appointment of a Title IX coordinator (http://www2.ed.gov...). Twenty DCLs have been issued just this year on issues related to student aid. See, http://www.ifap.ed.gov.... In 2015, twenty-two were issued on a variety of helpful topics, e.g. the undue hardship discharge of a student loan in bankruptcy. See, http://www.ifap.ed.gov.... Reviewing this DCL might be very helpful to students in a hardship situation. 2.This DCL did not purport to expand existing statutes, e.g. the Title IX of the U.S. Educational Amendments of 1972. This guidance says what is otherwise the law - there can no expansion from a DCL, hence no overreach of existing law: "This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations." See, http://www2.ed.gov... paragraph 3. 3.Any state or school which disagrees with this DCL can either (i) disregard the DCL or (ii) seek relief in court. The DOE and DOJ have given clear guidance as to their position as to how trans students should be treated under existing federal law. Any party with legal standing can dispute this position and, in fact, eleven states did just that by filing an action in the United States District Court of Texas. See, http://legalclips.nsba.org.... A mere statement by an agency charged with enforcing a statute like Title IX of its own interpretation of Title IX does nothing to prevent any other party from taking an opposing position. Therefore, this DCL is not an overreach (or even really a "reach") at all. This DCL merely provides information as to DOJ & DOE positions. 4.The guidance provided by this DCL was consistent with earlier positions taken by both the DOE & DOJ. Nothing new to see here folks. Move along: The legal basis which under girds this DCL is the position that discrimination against a transgender student because that person is transgender is discrimination "because of sex" in violation of Title IX of the U.S. Educational Amendments of 1972. In April of 2014, the DOE made this position clear and also stated that its Office of Civil Rights was accepting complaints for investigation. See, http://www2.ed.gov..., section B-2. The DOE had taken this this position in 2012 in a Title IX investigation of the Arcadia School District which resulted in a complaint being filed in the DOE"s Office of Civil Rights. See, http://www.nclrights.org.... This was not a well kept secret. Similarly, the EEOC and the DOJ have taken the same position in an employment context, i.e. that discrimination against a transgender person because they are transgender is discrimination "because of sex" in violation of Title VII of the Civil Rights Act of 1964. Google Macy v. Holder, and the Department of Justice v. Southeastern Oklahoma State University for examples. (Courts have generally assessed Title IX discrimination claims under the same legal analysis as Title VII claims. Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir.1993) (Title VII is "the most appropriate analogue when defining Title IX's substantive standards"), quoting Mabry v. State Bd. of Community Colleges, 813 F.2d 311, 316 n. 6 (10th Cir.1987).) 5.The guidance provided by this DCL was consistent with an evolving body of federal law. The only United States Circuit Court of Appeals to make a recent determination on transgender student rights is the 4th Circuit in Grim v. Gloucester County School Board. See, https://www.aclu.org.... In a recent Title VII case, Judge Robin Cauthron of the Western District Court of Oklahoma (an appointee of President George H. Bush) rejected legal arguments which would have found the opposite. That case is set for trial in October of this year. Many more examples can be provided if this becomes a disputed issue. Note that this DCL is still lawful even if Court's ultimately disagree with the position taken by the DOE and DOJ. This DCL placed an important public issue in a position to be decided with finality in the court system. Litigation on these points was inevitable. Similarly, it is not my burden to show that these policies are desirable to establish that this DCL is lawful. However, while we are here, please note that around 15.5 million k-12 students attend school in districts with affirming transgender policies. Chicago, New York, Los Angeles, Kansas City, even Tulsa, Oklahoma all have affirming policies which are consistent with this DCL. Kids will be kids but nothing dire has happened in any of these situations. However, to repeat, I do not have to prove that these policies are the best possible policies for students to show that the issuance of this DCL was lawful and not any kind of federal overreach as argued by so many conservative commentators. I believe the policies are in the best interests of students but that is an issue for another debate.