Bench Memos

Sense and Nonsense on the Texas Transgender Guidance Decision

As Mark Pulliam notes below, a federal district court in Texas threw out the Obama Administration’s guidance directing schools to accommodate transgender students by allowing them to use the facilities (restrooms, lockers, etc.) that conforms with their professed gender identity. As I discuss in this Volokh Conspiracy post, the judge concluded (among other things) that the guidelines were, in effect, a regulation requiring notice-and-comment under the Administrative Procedure Act. The court also concluded that the guidelines conflict with the relevant statutory and regulatory provisions, but the initial conclusion was sufficient to throw out the Administration’s guidance.

The opinion largely dwells on questions of administrative law and statutory interpretation, rather than the more interesting policy issues that pundits would rather debate. This may explain why some of the early coverage is so sloppy or inaccurate. Take, for example, this article by Mark Joseph Stern at Slate.  

Stern characterizes the decision as some sort of power grab, yet inadvertently confirms that the judge was correct to conclude the guidelines are invalid. As Stern notes, the guidelines “would have barred schools that receive federal funding from discriminating against trans and gender-nonconforming students.” If so, that proves the correctness of the court’s ruling, because a guidance document that imposes obligations on the regulated community is not a guidance at all, but a regulation subject to the APA’s procedural requirements. This is Administrative Law 101.

Stern’s sloppiness does not end there, however. In addition to bollixing the relevant deference doctrines, he later claims that the court purported “to halt the implementation of federal guidance in states where an appeals court has already approved the exact same guidance” (emphasis added), referencing the Fourth Circuit’s decision in G.G. v. Gloucester County School Board (which I discussed here and here). While Stern is right to note that aspects of the injunction may be unnecessarily broad, his account is still wrong on multiple levels.

First, the guidelines at issue were not “approved” by the Fourth Circuit; they could not have been. The Fourth Circuit decision came down in April. The guidelines, on the other hand, were not issued until May. (In fact, here’s Stern’s May article about them.) The court also didn’t purport to overrule anything the Fourth Circuit did. It expressly noted that the Fourth Circuit decision has been stayed by the Supreme Court, and invited briefing should the scope of its injunction need to be narrowed so as not to “unnecessarily interfere with litigation currently pending before other federal courts on this subject.”

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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