Showing posts with label Transgender Rights. Show all posts
Showing posts with label Transgender Rights. Show all posts

March 14, 2017

The Grimm Injustice Comes from Unelected Bureaucrats Making Law

 When the Supreme Court announced last week it would no longer hear Gavin Grimm’s “transgender bathroom case,” competing narratives quickly emerged: LGBT rights versus local control. These dueling storylines miss the larger lesson about the real culprit in so many of these high-profile culture wars cases: the uncontrollable administrative state.

After all, nothing had changed since the Fourth Circuit ruled last year that a Virginia school board must allow Grimm, a biological female who suffers from gender dysphoria, to use the boy’s bathroom. Yet the Supreme Court not only dismissed the appeal but also sent Grimm’s case back for the Fourth Circuit to reconsider. Nothing had changed, that is, except the reigning president and “guidance” issued by his administrative overlords.

We’re Arguing about Opposite Interpretations of Law

Before we go there, let’s do a brief review. The law at issue, Title IX, hasn’t changed since Congress passed that statute in 1972. It quite simply provides: “No person in the United States 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 . . . .”

Since 1975, federal regulations from the Department of Education, the federal agency charged with enforcing Title IX, have authorized schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the “facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.”

Fast-forward 40 years: On May 13, 2016, the Obama departments of Justice and Education issued a joint letter stating: “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

The Fourth Circuit relied to this letter to hold that the local school board had violated Title IX by refusing to allow Grimm to use the boys’ bathroom. After losing in the appellate court, the school board had sought review in the Supreme Court. The Supreme Court agreed to hear the appeal and had scheduled oral argument for later this month.

But the transfer of power following Trump’s inauguration handed over the presidential pen. And what the pen giveth, the pen taketh away. On February 22, 2017 with a brief two-page letter, the Trump administration withdrew and rescinded the May 13, 2016 letter. With a mere (electronic) signature, then, the Trump administration jettisoned the Fourth Circuit’s sole justification for ruling in Grimm’s favor. With the Obama administration’s guidance rescinded, the Supreme Court summarily disposed of Grimm’s appeal, sending the case back to the Fourth Circuit, which will now need to decide anew the outcome given this change in circumstance.

This Way of Governing Lets Agencies Effectively Make Law
If rule by bureaucratic decree seems a strange procedure for a constitutional republic, it should. Therein lies the true import of Grimm: not the battle of competing rights, but the power of our adminstrative state. What the Grimm case lays bare is disquieting: Grimm exposes the charade used to justify the deference afforded federal agencies—that they possess subject-matter expertise.

The Grimm case began and ended with deference. Not to the Constitution. Not to the applicable statute, Title IX. Not even a regulation. But deference, a judicial genuflection, to the views of unelected, unaccountable so-called “experts.” This deference to an agency’s interpretation of its own “ambiguous” regulations was mandated by the Supreme Court’s 1997 decision in Auer v. Robbin. The court justified this with the specialized subject-matter expertise administrative agencies supposedly possess.

But it is pure folly to believe that interpreting the word “sex” requires any expert or specialized knowledge. It is beyond parody to claim that the Department of Justice, the Department of Education, and the Equal Employment Opportunity Commission—all distinct federal agencies that have reinterpreted sex to include sexual identity—possess the same specialized knowledge. Further, if the word “sex,” as used in Title IX and its implementing regulations, is ambiguous there is truly no limit to what an agency could redefine under the auspices of “expertise.”

It is the absurdity of deferring to a federal agency’s view of the law based on a purported subject-matter expertise that merits the press and public’s focus, not the transgender angle, because Grimm exposes the too-long ignored reality: The administrative state does not have an expertise. It has a political agenda.

Bureaucrats Have Power, and Power Corrupts
The Grimm case also bares the administrative state’s stealth attack on our constitutional framework. America’s founders devised this framework “to fetter the federal government, and the presidency in particular, to prevent the republic from turning into anything like tyranny.”

The rise of the administrative state—rule by unelected, unchecked executive-branch bureaucrats—over the last 100 years has rendered our republic a mere sliver of the Founders’ vision. As Chief Justice John Roberts put it in his dissent in City of Arlington, Texas v. FCC: “The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. ‘[T]he administrative state with its reams of regulations would leave them rubbing their eyes.’”

This modern reality exists because, while the Constitution established three co-equal branches of government, each with specific and limited powers designed to check the other branches, the executive branch has, as Supreme Court nominee Neil Gorsuch put it, “swallow[ed] huge amounts of core judicial and legislative power.” Simultaneously, the judicial and legislative branches have abdicated their constitutionally appointed roles to check the abuse of executive power.

The Grimm case should open the public’s eyes to constitutional modernity. While Congress properly exercised its legislative powers in passing Title IX in 1972 to prohibit sex discrimination, the Fourth Circuit in Grimm did not rely on that statute. Instead, it ruled in favor of Grimm based solely on a letter from two federal agencies. The Grimm decision thus simultaneously showcased the executive branch’s overreach—its making of new laws—and the judicial branch’s abdication of its duty to interpret the law.

The Supreme Court’s dismissal of Grimm’s appeal should cement this disturbing reality in the public’s conscience. Think about it: The Supreme Court of the United States—the highest court in the land, the final arbiter of the law, which emphatically has the province and duty to say what the law is —tiptoed off, stage left, once the new president entered reciting a different soliloquy.

This result should disturb any lover of freedom, whether he supported former President Obama’s interpretation of Title IX or the current administration’s more circumspect position. Let’s hope the Grimm case can finally bring the administrative state’s attack on liberty into focus.

Margot Cleveland is a lawyer, CPA, and adjunct professor for the University of Notre Dame. Cleveland can be reached via email at or on Twitter at @ProfMJCleveland.

March 13, 2017

Justice Dept Hits Transgender Community Again

After revoking guidance barring schools from discriminating against transgender students, the U.S. Justice Department has now backed off its legal challenge to the controversial anti-LGBT North Carolina state law House Bill 2.
Under former U.S. Attorney General Loretta Lynch, the Justice Department last year filed a lawsuit against HB2, which bars cities from enacting LGBT ordinances and transgender people from using the restroom consistent with their gender identity. Arguing HB2 violated federal civil rights law, the Justice Department sought a request for a preliminary injunction to enjoin enforcement of the statute as the litigation proceeded.
But on Monday, the Justice Department under U.S. Attorney General Jeff Sessions withdrew its request for a preliminary injunction, which remained outstanding during the shift between the Obama and Trump administrations.
That filing followed an unopposed request from the department last week to allow an existing, but narrower, injunction instead to take place of the broader injunction the U.S. government once sought to ban enforcement of the law in its totality.
U.S. District Judge Thomas Schroeder issued the existing preliminary injunction against HB 2 as a result of a lawsuit filed by the American Civil Liberties Union, the ACLU of North Carolina and Lambda Legal, but that order only barred the University of North Carolina from enforcing the law and as it pertained to the plaintiffs in their capacity as students and employees.
The litigation filed against HB2 continues to proceed, but at a slow pace. The U.S. Fourth Circuit Court of Appeals is set May 10 to hear arguments in the case filed by the ACLU, ACLU of North Carolina and Lambda Legal, which appealed the narrow preliminary injunction to seek a more expansive injunction before the federal appeals court.
In a joint statement to Washington Blade, the ACLU and Lambda criticized the Justice Department for withdrawing its request for a preliminary injunction, accusing the administration of falling short in its duty to protect civil rights.
“Under Jeff Sessions, the Civil Rights Division of the Department of Justice is systematically working to stop and rollback the gains of the last eight years,” the organizations said. “DOJ’s latest filing in North Carolina to delay the ruling on their motion for preliminary injunction against HB2 further indicates an unwillingness to protect the rights of transgender people, and accordingly, we must redouble our efforts to enforce our civil rights under the law.”
The Justice Department’s decision to back off its litigation against HB2 is consistent with other anti-trans actions the department has made under Sessions. Last month, the Justice and Education departments revoked guidance assuring transgender students have access to the restroom in schools consistent with their gender identity, prompting the U.S. Supreme Court to scrap consideration of whether Title IX of the Education Amendments of 1972 affords those protections to transgender students nationwide.
The department withdrew an appeal of a court order against the now rescinded transgender student guidance and missed a deadline to file an appeal of another court order barring enforcement of a regulation assuring transgender people have access to health care, including gender reassignment surgery.

February 24, 2017

State Sex-Segregated Toilet Legislation

Trump Promised to Protect the LGBT then Forgets What the ’T' is for

 Ironic but now the LGBT community can see him as he is “An Emperor with no clothes”

In a total surprise after Trump said he will protect LGBT students he has turn around and forgotten what the “T” stands for. on LGBT which he promise he will protect.  No wonder people say his level of reading comprehension is very low. How can a man run and after winning, again doubles down on his supports and commitment for this LGBT community then turns around and sticks a knife in them.
We’ve learn that is his m.o. (modus operandi).

 Right after his election he tried to backtrack with the whole gay community but changed his mind thinking of how unpopular that would be and besides the gay community has reached the backing of the law by the Supreme Court and in many legislatures in many states. It is said his son in law Mr. Jarrett and his daughter,  convinced him otherwise to reconsider and so he did but he would have never have changed his mind if it wasn’t that he realized he was going to get a lot of heat in his presidency too early on. He figures there is always later.

The Transgender community does not enjoy the advances the gay community has enjoyed.
That is why they fought so hard when some red states made an issue where there was none, about the use of the bathrooms. At the same time you saw the bigotry against this community since it is the least understood, come out.  Now people who never knew the so called problem existed now they were “scared, concern could not let it go on” There was legislation on the pike for the Transgender community but the Republicans had been dragging their feet for two years on this. Everyone thought with another Democratic administration their protections would advance but no luck there. They got a man that can turn his promises around on a dime! It’s still stinging and hurtful.  The Emperor with no clothes now and also fat wearing a speedo with a full shoulder nudge from Attorney General Jeff Sessions, is dropping protections for transgender youth looking to use, of all things, a school bathroom.

For a national leader who continually talks about unity and public support, it’s a divisive and cruel move. He’s erasing a guarantee in the battle for equality and basing the decision on the doctrine of states rights, a cloak that bigots misuse to dodge federal directives — especially those dealing with civil rights.

The net effect overturns an Obama directive and needlessly reignites a culture war issue. It allows states and school districts to set the rules on whether to allow transgender students to use toilet facilities and locker rooms based on their gender identity, not birth certificate. But it also gives license to bullying and discrimination and deepens a sense of separation for an emerging minority.

During his campaign, Trump signaled sympathy, saying transgender people had the right to “use the bathroom they feel is appropriate.” But he also worked hard to win support from religious conservatives, who oppose the idea. Since taking office, he’s continued that shift by picking Sessions, a longtime foe of gay rights, as attorney general.
In California the reversal will have little impact since state laws and most school boards fully support transgender access. Nationally it will be another story. There are an estimated 150,000 transgender youths between 13 and 17 years old, according to the Williams Institute, a think tank at the UCLA law school.

The White House argues that the Obama administration went too far in using federal laws barring sex discrimination in schools. That, at least, was the legal rationale used by religious minded critics who talked up fears of sexual predators and wholesale loss of privacy.

If there’s any consolation, it’s that Education Secretary Betsy DeVos reportedly struggled to convince Trump to stick with the access rule. But she lost out to Sessions, who viewed access as an intrusion on state powers and wanted no part of defending legal cases testing the law.

By backing away from transgender rights, Trump is punishing the group and rewarding his most strident followers. He’s also showing that his campaign rhetoric about tolerance can mean little when the pressure builds.

February 22, 2017

Trump Rolling Back Protections for Transgender Students


The Trump administration plans to roll back protections for transgender students, reversing federal guidance that required the nation’s public schools to allow children to use the bathrooms and locker rooms that matched their gender identities.

In a letter to the nation’s schools, administration officials plan to say they are withdrawing guidance issued by the Obama administration that found that denying transgender students the right to use the bathroom of their choice violates federal prohibitions against sex discrimination, according to a draft of the letter obtained by The Washington Post.

“This interpretation has given rise to significant litigation,” states the two-page draft, which indicates that the Education and Justice departments plan to issue it jointly. The draft says administrators, parents and students have “struggled to understand and apply the statements of policy” in the Obama-era guidance.

As a result, the departments “have decided to withdraw and rescind the above-referenced guidance documents in order to further consider the legal issues involved.” The letter makes clear that schools must protect all students and that the withdrawal of the guidance “does not diminish the protections from bullying and harassment that are available to all students. Schools must ensure that transgender students, like all students, are able to learn in a safe environment.”

A final version of the letter is slated to be issued Wednesday, according to a Republican operative with knowledge of the conversations within the Trump administration on the issue. The administration is expected to release the letter despite objections from Education Secretary Betsy DeVos, who did not want to rescind the guidance, the operative said. Officials with the Education and Justice departments did not immediately respond to requests for comment late Tuesday night.

The reversal would represent a significant setback for the gay rights movement, which made enormous gains under President Barack Obama. It suggests that President Trump, who had signaled during the campaign and in the early days of his presidency that he supports gay and transgender rights, will hew closer to the GOP party line. 

“I think that all you have to do is look at what the president’s view has been for a long time, that this is not something that the federal government should be involved in, this is a states’ rights issue,” White House spokesman Sean Spicer told reporters at a daily media briefing Tuesday afternoon, saying that the Education and Justice departments would issue fresh guidance soon.

The decision would not have an immediate impact on the nation’s public school students because a federal judge had already put a hold on the Obama-era directive.

But it would instantly affect several legal cases, including that of Gavin Grimm, a transgender Virginia teen who sued his school board for barring him from using the boys’ bathroom. The U.S. Supreme Court is scheduled to hear oral arguments in Grimm’s case next month. 

A lower court ruled in favor of Grimm based on the Obama administration’s position on transgender student bathroom use. The change would at least partially undermine Grimm’s case.
Gay rights groups, which expected the Trump administration to change course from the earlier transgender guidance, condemned the move preemptively.

“Such clear action directed at children would be a brazen and shameless attack on hundreds of thousands of young Americans who must already defend themselves against schoolyard bullies, but are ill-equipped to fight bullies on the floors of their state legislatures and in the White House,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement Tuesday.

The Obama administration’s guidance was based on the position that requiring students to use a restroom that clashes with their gender identity is a violation of Title IX, the federal law that bars sex discrimination. Transgender students and their parents cheered Obama’s move to expand the protections, but it drew legal challenges from those who believe it was a federal intrusion into local affairs and a violation of social norms.

The issue of which bathrooms transgender people should be permitted to use has evolved in recent years into a central debate about rights for lesbian, gay, bisexual and transgender people. Transgender advocates say that allowing people with gender dysphoria to use their preferred restroom is essential for their health and psychological well-being. Opponents say the accommodations violate student privacy and traditional values.

Many legal experts say that federal law protects transgender students no matter what agency guidance says.

“This administration cannot strip away the rights of transgender students by retracting the guidance — the issue is before the courts now and the law has not changed,” said Vanita Gupta, who worked as the head of civil rights for the Justice Department in the Obama administration and issued the original guidance. “To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children (including LGBT students) are able to attend school free from discrimination.”

It is unusual for a new administration to overturn such significant civil rights guidance, according to advocates who closely track the issue. And such a reversal is likely to leave schools confused about how to proceed, they say; Obama administration officials said that they developed the transgender guidance in response to requests from school officials.

“Schools repeatedly asked for guidance on how to support transgender students and create a safe and inclusive learning environment for all,” said Anurima Bhargava, who helmed the educational opportunities section of Justice Department’s civil rights division under Obama. “The guidance has been, and will continue to be, an important and practical resource for schools.”

Nearly 800 parents of transgender students wrote to President Trump last week, urging him to keep the guidance to protect their children from discrimination. 

“No young person should wake up in the morning fearful of the school day ahead,” the parents wrote. “When this guidance was issued last year, it provided our families — and other families like our own across the country — with the knowledge and security that our government was determined to protect our children from bullying and discrimination. Please do not take that away from us.”

The Obama administration’s directive sparked immediate backlash from those who saw it as a gross overreach of executive power, and several states sued in response.

Texas Lt. Gov Dan Patrick (R) has been one of the most vociferous opponents of the Obama guidance, calling it “blackmail” and the most important issue for families in schools since the Supreme Court ruled against school-sponsored prayer.

In January, Patrick joined Texas Republicans in supporting a bill that would require the state’s transgender residents to use bathrooms and locker rooms corresponding to their biological sex, not their gender identity. He said the legislation was necessary to protect Texans’ privacy, including in public schools.

“We know it’s going to be a tough fight,” Patrick said at the time, according to the Texas Tribune. “But we know we’re on the right side of the issue. We’re on the right side of history. You can mark today as the day Texas is drawing a line in the sand and saying no.” 

In an interview in May with The Washington Post, Donald Trump, then the presumptive Republican presidential nomination, said he thought that the government should protect transgender people but that it should be up to the states to decide on the bathroom issue.

“I think it’s something where we have to help people — and hopefully the states will make the right decisions,” Trump said in the interview.
Attorney General Jeff Sessions has been a longtime opponent of broadening LGBT rights. While in the U.S. Senate, he endorsed a constitutional amendment banning same-sex marriage and opposed expanding hate crime legislation to include acts against gay and transgender people.

DeVos, who was narrowly confirmed this month after a contentious hearing, has a more nuanced record on gay rights. By reversing course on the transgender issue, she could again find herself mired in controversy at the outset of her tenure.

DeVos has been accused of hostility to LGBT rights because of her extended family’s donations to socially conservative advocacy groups and efforts to ban same-sex marriage. She has tried to distance herself from her family’s position; in 2004, for example, she and her husband did not contribute to a ballot initiative to ban same-sex marriage in their home state of Michigan, though several of their relatives did.

At her confirmation hearing, she asked senators not to confuse her record with that of her family: “I embrace equality, and I firmly believe in the intrinsic value of each individual, and that every student should have the assurance of a safe and discrimination-free place to become educated,” she said at the time. A week later, a spokesman for the DeVos family told BuzzFeed News that DeVos supports same-sex marriage.

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