Transgender Guidance Called ‘Egregious' Example of Overreach

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By Cheryl Bolen

May 24 — The chairman of a House Judiciary Committee task force dedicated to examining what it characterizes as executive overreach by the Obama administration cited recent guidance on allowing transgender students to use the school bathrooms and locker rooms of their choice as an “egregious” example.

The Justice and Education departments issued guidance May 13 to public schools advising them that Title IX of the Education Amendments of 1972 and its implementing regulations prohibit sex discrimination, including discrimination based on a student's gender identity, in educational programs and activities operated by recipients of federal financial assistance.

The guidance directed schools to treat a student’s gender identity as the student’s sex for purposes of Title IX.

‘Egregious' Example

At a hearing, Rep. Steve King (R-Iowa) said the task force would focus on the delegation of regulatory authority to an “unaccountable federal bureaucracy.” King is chairman of a a special, six-month task force formed to examine executive branch overreach that the House Judiciary Committee authorized in February (See previous story, 02/04/16).

Congress has passed overlapping delegations of regulatory power to multiple agencies, King said. “Further, more than one-third of major federal rules have been promulgated without prior notice and comment by the public,” he said.

The president now uses more executive memoranda and blog posts for major policy changes, as well as agency guidance that technically is not binding, but nevertheless “tells Americans how their federal regulatory overlords are interpreting the law,” King said.

King criticized as “egregious” the guidance by the Justice and Education departments suggesting that all public schools would lose federal funding if they did not let “anatomical boys” use facilities formerly reserved for “anatomical girls.”

These unorthodox practices have led to the type of legal uncertainty condemned by James Madison, the fourth U.S. president, and the founding fathers, King said.

Case of Anti-Regulatory Fervor

Rep. Steve Cohen (D-Tenn.), the task force's ranking member, said that Madison probably did not have a view about transgender students.

“That's the great thing about our Constitution, is it can adjust to sync with the times ... reflect the current situation,” Cohen said.

Rep. John Conyers Jr. (D-Mich.), the ranking member of the full Judiciary Committee, said the task force hearing was the 32nd “anti-regulatory” hearing held since the beginning of the 112th Congress.

“The anti-regulatory fervor from some in this legislature is no doubt passionate and heartfelt,” Conyers said.

Still, regulation is vital to protecting Americans from a myriad of harms, Conyers said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com