Note: This piece originally ran at the Civitas Institute.
Yesterday, the United States Court of Appeals for the Fourth Circuit ruled that a biological female who identifies as a male may bring a claim under Title IX against a school for not allowing him to use the men’s restrooms and locker room facilities. In layman’s terms, this means that Title IX, a law designed to prevent discrimination based on sex in schools and universities, may now be used by transgender individuals in the Fourth Circuit to bring lawsuits alleging discrimination based on their gender identity. The Fourth Circuit essentially equated gender identity to biological sex for the purposes of Title IX. In doing so, it further eroded whatever is left of the distinction between the legislative and executive functions of our federal government.
We could have an interesting policy discussion about whether Title IX should protect gender identity in the same way that it protects biological sex. That discussion would involve many difficult questions — like, for example, how should Congress statutorily define something like gender identity that is largely based on a person’s subjective perception without effectively eliminating separate restroom facilities for men and women? Would it be better to eliminate separate facilities for men and women altogether? Is the discrimination faced by transgender individuals materially similar to the discrimination that motivated the passage of Title IX?
This nuanced policy discussion never happened. That’s because a law adding Title IX protections for gender identity was never enacted. Not even a formal regulation by the Department of Education has been passed to that effect. So where did the Fourth Circuit get the idea that the word “sex” in Title IX applies to gender identity?
On April 29, 2014, the Department of Education’s Assistant Secretary for Civil Rights issued a document entitled “Questions and Answers on Title IX and Sexual Violence.” The document addressed several issues, including how schools should handle sexual violence and which students are specifically protected by Title IX. Of particular interest, the document addressed whether gender identity is a protected characteristic. On this topic, Assistant Secretary Catherine Lhamon wrote:
Title IX protects all students at recipient institutions from sex discrimination…Any student can experience sexual violence, [including] transgender students…Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity…and [the Department of Education’s Office for Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived…gender identity of the parties does not change a school’s obligations.
Lhamon cited nothing other than the Department’s own enforcement prerogatives. She and the Department of Education simply decided that Title IX applies to gender identity as well as sex.
Note that this is not a statute or even a formal regulation passed by the Department of Education, which would be subject to the administrative rulemaking process. It is simply Lhamon’s interpretation of the law, labeled as a “significant guidance document” by the Obama administration.
But the text of Title IX is clear: it prohibits discrimination based on sex, not gender. Even the left-leaning Human Rights Campaign recognizes that sex and gender are two different things.
This brings us to yesterday’s decision. The Fourth Circuit was presented with the issue of “whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.” As the Court noted, the actual text of Title IX provides as follows:
No person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. (emphasis added)
However, the Fourth Circuit decided to adopt Secretary Lhamon’s interpretation of Title IX from her letter. This letter was not a formal regulation, and therefore was subject to no formal review. But, since the Fourth Circuit decided that the letter is not “plainly erroneous or inconsistent with the text of [Title IX],” it deferred to Lhamon’s interpretation.
Under the Fourth Circuit’s decision, a federal agency can now rewrite a law with a simple guidance letter. This is agency deference of the most extreme character. Executive agencies are now not merely interpreting laws — they are writing them.
There is a reason that our Constitution separates the power to make law from the power to enforce law. When these two powers are wielded by one person or group of persons, that situation becomes uncomfortably similar to a dictatorship that is ruled by decree. The concern is not whether Barack Obama, the Department of Education, or Assistant Secretary Lhamon should wield this amount of power. The concern is whether anyone should wield this amount of power.
Perhaps Title IX should be amended to provide protections for transgender individuals. But in a country governed by laws, that sort of statutory amendment is enacted via the legislative process, not by a federal court’s adoption of a guidance letter. Should the Fourth Circuit’s decision be appealed to the United States Supreme Court, it will have to consider whether it is willing to stretch agency deference to the point where actual, substantive lawmaking is happening within the executive branch.
Hopefully, the Justices will know better.