As to (1) you write that "In 2018, a spokesperson for the Department further added to the confusion by saying that although penalization of harassment of students for not conforming to sex-stereotypes is sex discrimination prohibited by Title IX, bathroom separation on the basis of sex is not a form of discrimination protected by Title IX." So there is no dispute about what "sex" means, only a dispute about what "discrimination" means. As to (2), you have given no reason why the Department had a duty to issue the original "Dear Colleague" letter, had a duty either to retract or not retract it, or now has a duty to issue new guidance clarifying its position. If there is such a legal duty, is it created by Title IX, or by some other statute?

I cannot tell whether you have changed position about what the bathroom rules in public schools should be. This draft appears to support the position taken in the original letter of guidance. The previous draft appeared to say that the courts should not have deferred to the agency's understanding of its own regulations if that understanding was a "surprise" to non-school, non-colleague parties. I'm glad we decided to refocus the essay on the question, given the indirectness of the previous draft, but I'm puzzled by the apparent conflict between the process draft and the substance draft on the substance.

The mission of the Department of Education (“the Department”), as stated on their website, is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. (https://www.ed.gov/). As our understanding of sex and gender identity has evolved in recent years, there has been more debate about whether the Department is observing its mission when interpreting how regulations about sex and sex discrimination apply to transgender students. After some back and forth, we are left now with an understanding of sex that recognizes the reality of transgender students in some regards, but not in others, particularly in the case of bathroom access. In order to provide clarity for school, students and parents and meet its mission of ensuring equal access, the Department should issue a definitive and comprehensive definition of sex.

The question of whether the Department is in fact adhering to its mission was addressed when it issued a Dear Colleague letter in 2016 stating that Title IX prohibits discrimination on the basis of gender identity and clarified that transgender students should therefore be treated consistent with their gender identity at school. (https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf). The country, though still divided on the issue, briefly had indisputable evidence of what the Department’s stance was. However, this certainty was taken away when the Department retracted the letter in 2017. In 2018, a spokesperson for the Department further added to the confusion by saying that although penalization of harassment of students for not conforming to sex-stereotypes is sex discrimination prohibited by Title IX, bathroom separation on the basis of sex is not a form of discrimination protected by Title IX. (https://www.buzzfeed.com/dominicholden/edu-dept-trans-student-bathrooms?utm_term=.sbzd51yYp#.xl58DVEBG)

Underlying this argument is the presumption that bathroom access consistent with gender identity is required to ensure equal access. Arguments that bathroom access is not tied to equal educational opportunity primarily focus on the non-educational nature of bathroom usage or the equality that regulations regarding sex and bathroom use are applied equally to all students. Both arguments are unpersuasive and fail to understand the significance of the issue. As to the former, it is true that bathroom usage does not have the same educational connotations as other parts of the schooling process. That said, bathrooms have become a necessary part of human existence. Not being able to use the bathroom at school forces students to wait until they get home or go out of their way to find a unisex bathroom (if there is one). Both options detract from learning giving students a subpar educational experience. In response, critics argue that transgender students are able to use the bathroom - they just have to use the bathroom that corresponds with their sex, not their gender identity, just like every other student. In this way, they argue, there is equal access. However, equality is not simply about facially neutral regulations that apply in the same way to every individual. Further, there is a lack of equal access because cisgender students are being allowed to use bathrooms that they would choose anyway, whereas transgender students are not. Given our contemporary understanding of gender identity, this difference clearly points to inequality.

The Department has a responsibility to clarify the definition of sex for schools such that transgender students can use the bathroom that aligns with their gender identity. Issuing a new rule defining sex in this way allows students and parents to know that no matter where they are bathroom access will not be a concern. Such a rule would also recognize fully the reality that many people wrestle with gender identity and how it relates to their sex assigned at birth. This recognition would empower developing students who are transgender or might be questioning their gender identity to feel more comfortable doing self-exploration. Finally, such a rule would ensure equal access for all students to bathrooms with which they are comfortable. Equal access is a core value of the Department that it is currently failing to meet by not providing protection for transgender students. ( http://www.lgbtmap.org/transgender-youth-school-release and https://www.nbcnews.com/feature/nbc-out/without-federal-protections-trans-students-face-potential-health-crisis-n725156). This lack of protection has very real and long-lasting implications for the educational and life quality of transgender individuals.

There are many individuals who believe either that the actions taken already speak clearly enough for the Department’s position or that allowing transgender students to use the restrooms of their choice would be going too far. These individuals cite concerns regarding tradition, privacy, deference to local school districts, and flip-flopping. Arguing that tradition is a reason to maintain the current status quo argues for maintaining a discriminatory system. That line of argument is reminiscent of arguments against equality in other areas that have thankfully failed before. Privacy concerns are a genuine concern, however critics of equal bathroom access based on gender identity often focus on privacy concerns of cisgender students. This argument misses the point and deftly turns attention away from transgender students who are seeking equality. Further, it suggests that the privacy concerns of transgender students is less important than those of other students. Although transgender students are a smaller portion of the student population, they deserve to be protected by law for that very reason. The argument about school districts is compelling at first. However, when it comes to issues of equality and discrimination, a national standard is necessary. Local discrimination uproots lives and forces the discriminated to make a choice between, in this case, where they go to school (which sometimes implicates where they live) and whether or not they can use the bathroom. Finally, fears that students will change how they identify their genders regularly misunderstand the transgender experience and instead focus on the possibility that ill-intentioned students will abuse the policy for improper reasons.

As the Department is responsible for ensuring equal access to all students, including transgender students, it should issue a new rule defining their regulations as prohibiting bathroom access on the basis of sex, which is inclusive of gender identity. These protections will allow this country to move past the bathroom debates, which have likely been a scapegoat for other very real concerns.

The issue is the standard of review to be applied to agency interpretations of the agency's own regulations. This so-called "deference" is the same standard, whether the interpretation is clearly erroneous, that is applied to much of the work of the district courts. We do not speak of the appellate courts as transferring power to the district court whenever it does not review the work of the lower court de novo. Why should we here?

This very real possibility is highlighted by the high level of deference given to agencies under Auer vs. Robbins and its subsequent line of cases.

Please link to the cases, so the reader can immediately and conveniently see for herself what they say.

Auer deference threatens the separation of powers by allowing agencies to essentially determine the law without going through notice-and-comment rulemaking without subjecting interpretations to a high enough level of analysis.

If the agency can achieve the same result by a different means, it is not the separation of powers that has been affected: the power didn't move. Nor has judicial review been eliminated, because the citizen suing over agency action reaches the court of appeals by the same means she previously had, with all the same remedies available. Why does the standard of review used by the appellate court in deciding whether the agency's interpretation of the regulations should be applied in the court of appeals—before proceeding to determine whether the regulation comports with the agency's statutory authorization, etc.—implicate the separation of powers?

Even the subsequent exceptions carved out to narrow Auer deference fail to enable courts to investigate agency decisions thoroughly. As it is, Auer deference should be abandoned by courts in favor of Skidmore deference, which empowers courts to use their interpretive tools to determine the level of deference owed to agencies.

No, the regulation made pursuant to the APA is made pursuant to the APA. If the regulation is interpreted by the agency in a fashion unsupported by the record resulting in the rule, than the agency's interpretation of the regulation is clearly erroneous. What more is there to this argument?

Which is?

Further, agencies do not have to affirmatively show that they used fair and considered judgment. Despite the exceptions to fair and considered judgment, the Court has made clear that an agency is not disqualified from changing its mind because agencies are encouraged to scrutinize their interpretations and policies. The non-dispositive nature of the exception allows agencies to wiggle out of it. Once the exception of a post hoc rationalization was established, agencies were put on notice of the requirement and therefore became able to again escape the loophole with simple actions. Finally, a convenient litigating position is a collection of words that seem arbitrary and without meaning. While the Court has made clear what fair and considered judgment is not, it has not elucidated what it is. Fair and considered judgment does not seem to require citations to data, precedent, or experts (as the agencies are presumed to be the experts). In effect fair and considered judgment becomes a meaningless, squishy standard that agencies can circumvent without showing anything.

How do we know that this is true? Here is where one might have expected some cases to be cited, demonstrating that the courts of appeals are unable to hold agencies to the use of fair and considered judgement.

The point was that if the agency's interpretation of the regulation uses statutory language, then it is reasonable for the court of appeals to read the statute for itself, as it would expect to do in reviewing the interpretation of a statute by the District Court, de novo.

Why does the analysis assume that the agency and the reviewing court are adversaries, with the agency "weaseling out" or "getting around" what is in fact a common task: giving effect to the Congressional direction?

Agencies can then lean on presumptions of expertise and knowledge implicit and necessary to administrative law in order to escape this exception as well.

Finally, the exception of unfair surprise is unreasonably narrow. Unfair surprise applies when notice is not provided to a regulated agency or when liability is imposed for past actions. Not only are the applications of unfair surprise when interpreted this way narrow, but they also disregard the consequences agency actions have on individuals. In reading unfair surprise as only applying to regulated entities, the exception disregards that agency guidelines have very real effects on private citizens. For instance, if the Department of Education issues an interpretation that overturns a prior regulation, which is of course permitted despite the fair and considered judgment exception, the concern of unfair surprise should be for the students, families, and school officials affected more so than for the regulated entities.

Here we now get to the underlying issue, which is bathrooms.

The idea of "unfair surprise" with respect to the standard of review applied to agency interpretations of regulations indicates that when an agency alters its interpretation of a regulation, it may be appropriate for the appellate court to review the new interpretation de novo, rather than under a "clearly erroneous" standard because the fact of regulatory change in itself sufficiently interferes with the expectations of regulated parties that they are entitled to have the reviewing court take a closer look at the agency action.

Various points can be made on both sides of that proposition. But for people who are concerned about non-cisgendered persons using the bathroom in which they feel comfortable, the relevant interests aren't those of the regulated entity (called a school), but rather someone who isn't subject to the regulation at all. It's a little hard to understand why their "surprise," unfair or otherwise, should have any effect on the rather remote question of the standard of review to be applied by courts of appeals to agency interpretations of the agency's own regulations. But when people want to fight about bathrooms, apparently, nothing in reason will stop them.

In focusing on the regulated entities, the exception of unfair surprise allows agencies to attain deference by pointing to the clarity of their language or the actions taken before announcing the new interpretation to suggest that regulated entities should have been on notice.

The most important route to improvement is to find a point of contact between what you are writing and what someone who doesn't agree with you would write. If you are writing about the standard of review question, then you would want to acknowledge and respond to the arguments of those who think clearly erroneous review of agency interpretations of agency regulations is in general the correct posture for the court of appeals. There are no shortage of such writers to discuss, on and off the bench, but they and their ideas are all absent from this draft.

If you are writing about whether the Department of Education has to make a new rule defining "sex" for the purpose of interpreting its own existing regulations to apply them (as "Dear Colleague" guidance, now revoked) to decisions by schools about which bathrooms non-cisgendered persons should use, then the best way of strengthening the essay is to explain that this is the subject, and to encounter the arguments on the other side of that question.

The Shortcomings of Auer Deference

-- By AndyGutierrez - 01 Mar 2018

Judicial deference allows courts to accept the judgment or interpretation of another legitimate party in lieu of their own. While deference can be helpful in cases where another party does in fact use careful consideration to reach their judgments, in cases where such judgment is not used, deference doctrines undermine the authority of courts by transferring the power of interpretation to other branches. This very real possibility is highlighted by the high level of deference given to agencies under Auer vs. Robbins and its subsequent line of cases. Auer deference threatens the separation of powers by allowing agencies to essentially determine the law without going through notice-and-comment rulemaking without subjecting interpretations to a high enough level of analysis. Even the subsequent exceptions carved out to narrow Auer deference fail to enable courts to investigate agency decisions thoroughly. As it is, Auer deference should be abandoned by courts in favor of Skidmore deference, which empowers courts to use their interpretive tools to determine the level of deference owed to agencies.

Deference under Auer is extremely high - unless an agency’s interpretation of its own ambiguous regulation is clearly erroneous or inconsistent, deference is warranted. Further, an agency’s interpretation need not be the only possible interpretation or the best possible interpretation; it only has to be a reasonable interpretation for deference to be warranted. In effect, agencies are able to have their interpretations given the force of law without having to undergo notice-and-comment rulemaking or other procedures. The exceptions to Auer that the Court created after realizing the potential for agency abuse of Auer deference are not enough to temper the separation of powers concerns. The exceptions are either lacking in substantial clarification as to how and when they should be applied, are unreasonably narrow in many circumstances, or are easily avoidable by agencies with a passing familiarity of their applications. The exceptions to Auer apply when an agency interpretation lacks fair and considered judgment, when an agency interpretation comes as an unfair surprise, or when an agency’s regulation parrots statutory language.

While the first exception regarding judgment sounds like it would have a straightforward application and a high bar. However, the Court has declined to clarify what is meant by fair and considered judgment and has instead opted to suggest what it is not. Thus far the Court has said that a lack of fair and considered judgment might be evidenced by either an interpretation that conflicts with a prior interpretation or a post hoc rationalization or convenient litigating position. This definition, or lack thereof, is not in line with what we might expect fair and considered judgment to mean. Further, agencies do not have to affirmatively show that they used fair and considered judgment. Despite the exceptions to fair and considered judgment, the Court has made clear that an agency is not disqualified from changing its mind because agencies are encouraged to scrutinize their interpretations and policies. The non-dispositive nature of the exception allows agencies to wiggle out of it. Once the exception of a post hoc rationalization was established, agencies were put on notice of the requirement and therefore became able to again escape the loophole with simple actions. Finally, a convenient litigating position is a collection of words that seem arbitrary and without meaning. While the Court has made clear what fair and considered judgment is not, it has not elucidated what it is. Fair and considered judgment does not seem to require citations to data, precedent, or experts (as the agencies are presumed to be the experts). In effect fair and considered judgment becomes a meaningless, squishy standard that agencies can circumvent without showing anything.

The exception regarding parroting is similarly laughable. While the Court has made clear that summarizing or paraphrasing will suffice to meet this exception, even this standard is easy enough to meet. Since agencies are aware of the standard, they can be sure that their regulations go beyond parroting by explaining and clarifying what a statute or statutory term means. Agencies can then lean on presumptions of expertise and knowledge implicit and necessary to administrative law in order to escape this exception as well.

Finally, the exception of unfair surprise is unreasonably narrow. Unfair surprise applies when notice is not provided to a regulated agency or when liability is imposed for past actions. Not only are the applications of unfair surprise when interpreted this way narrow, but they also disregard the consequences agency actions have on individuals. In reading unfair surprise as only applying to regulated entities, the exception disregards that agency guidelines have very real effects on private citizens. For instance, if the Department of Education issues an interpretation that overturns a prior regulation, which is of course permitted despite the fair and considered judgment exception, the concern of unfair surprise should be for the students, families, and school officials affected more so than for the regulated entities. In focusing on the regulated entities, the exception of unfair surprise allows agencies to attain deference by pointing to the clarity of their language or the actions taken before announcing the new interpretation to suggest that regulated entities should have been on notice.

Given that Auer deference diverts judiciary power to agencies, it should be discarded for Skidmore deference, which balances the interests of respecting agency expertise and recognizing judges’ roles. Skidmore deference is afforded on a sliding scale based on how an agency’s interpretation does against factors including thoroughness of consideration, validity of reasoning, consistency and contemporaneousness of an interpretation, and other persuasive powers of the agency. While these factors are similarly somewhat lacking in clarity, they provide Courts with more tools and agency by which to determine how much deference is owed. Skidmore deference is already applied in cases where courts are unsure whether Auer applies, so the transition would be smooth and clarifying. Applying Skidmore to agencies’ interpretations of their own ambiguous regulations would address the shortcomings of Auer, while allowing for courts to determine how to best apply the different factors.

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