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

Dear Instigator: Thank you for your kind words and intellectual honesty. I think you are right that the administrative arguments are thrown out in most of these types of cases but, I also admit, that the 5th Circuit may be a challenge. I suspect this is SCOTUS-bound. I limited the debate to the "overreach" argument since that seemed to be the primary theme of those attacking the May 13 DCL but I think anything could happen in terms of whether the DOE, EEOC, and DOJ position is ultimately accepted by SCOTUS. The equal protection issue is interesting. The Tenth Circuit found as recently as 2007 in Etsitty v. Utah Transit Authority that transsexuals are not a protected class under Title VII. However, they also noted: "Scientific research may someday cause a shift in the plain meaning of the term "sex" so that it extends beyond the two starkly defined categories of male and female." The court cited: "Schroer v. Billington, 424 F.Supp.2d 203, 212"13 & n. 5 (D.D.C. 2006) (noting "complexities stem[ming] from real variations in how the different components of biological sexuality ... interact with each other, and in turn, with social psychological, and legal conceptions of gender"); "cf. Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (stating that the possibility that sexual identity may be biological suggests reevaluating whether transsexuals are a protected class for purposes of the Equal Protection Clause)." There are two interesting points to be made here. First, the court seemed to want to address this issue but noted that, "At this point in time and with the record and arguments before this court, however, we conclude discrimination against a transsexual because she is a transsexual is not "discrimination because of sex."" (Emphasis added). In other word, the lawyers at the trial court level had not provided the 10th Circuit with the record and argument to address the issue. Second, and more to your point, the Brown case cited in Etsitty is a 10th Circuit equal protection case. In 1995, the 10th Circuit said in Brown: "Recent research concluding that sexual identity may be biological suggests reevaluating Holloway. See Equality Found. v. City of Cincinnati, 860 F.Supp. 417, 437 (S.D.Ohio 1994) (concluding that sexual orientation is an issue beyond individual control), aff'd in part and vacated in part, 54 F.3d 261 (6th Cir.1995); R01;Dahl v. Secretary of the United States Navy, 830 F.Supp. 1319, 1324 n. 5 (E.D.Cal.1993) (collecting research suggesting that sexual identity is biological). "However, we decline to make such an evaluation in this case because Mr. Brown's allegations are too conclusory to allow proper analysis of this legal question. We therefore follow Holloway and hold that Mr. Brown is not a member of a protected class in this case." Therefore, both in 1995 (Brown) and 2007 (Etsitty), the 10th Circuit seemed open to the argument but the proper groundwork had not been laid at the trial court level. Perhaps this is why the first lawsuit brought by the DOJ under Title VII on behalf of a transgender American was brought in 10th Circuit. That is the SEOSU case I referenced above. I think all of this will end up with SCOTUS and the result will largely depend on this Presidential election. Yikes. In any event, I appreciate your taking on a difficult position and wish you well. Allie