- I'd like to welcome to you
to the first forum of the year.
I hope you'll attend many more
in the course of the year.
I'm Deborah Malamud, I
teach, among other things,
legislation in the regulatory state
and employment discrimination here,
so I'm delighted to be your moderator
for this topic that touches
on both of those issues.
So it's my job to set this discussion up.
Our core federal sex
discrimination statutes
date from the 1960s and early 1970s.
Much had changed in
the last 40 or 50 years
in societal understandings of
sex and sex discrimination.
Emerging social movements
have challenged us
to recognize that sex is
not a biological binary,
and that sex discrimination
is not merely a matter
of affording a different treatment
to similarly situated men and women,
which is the old-fashioned notion
of what sex discrimination is.
Gender, which is the preferred term now,
both in law and in social science,
is a phenomenon that
is social and cultural
rather than merely or
even primarily biological.
Gender finds expression
across our lifespans
in myriad and changing ways,
and as a result, the
law has been called upon
to recognize myriad forms of
gender discrimination as well.
But all of this has
happened with no change
in those old statutes
from the 1960s and 1970s.
Now and in the past,
federal regulatory agencies
often take the lead in responding
when Congress does not.
And there has always been
social and legal controversy
when agencies interpret statutes
to keep up with changing times.
Now, our focus today is
specifically on transgender rights,
and within that sphere,
we're dealing particularly
with access to facilities,
which has always
been a core part of American
anti-discrimination law.
Federal anti-discrimination laws
reach federally funded programs
which you may not think about it this way,
but actually include all public schools
and most colleges and universities.
The Departments of Justice and Education,
for our purposes federal
regulatory agencies,
have used their powers under these old
civil rights statutes to
require schools and colleges to,
and now I'm quoting,
"treat students consistent
with their gender identity."
And this includes their use of restrooms.
The signs on our restroom
doors that invite people
to use the bathroom consistent
with their gender identity,
those are new and those are
part of our compliance efforts
because these regulations
we're talking about
affect us here in this building.
North Carolina responded
to this regulatory effort
by passing legislation
barring their schools
and universities from complying with it.
This has led to widespread boycotts
of the state of North Carolina,
including this week by the NCAA.
If sports matters to you,
you've heard of this.
We are now in a whirlwind of litigation
around this issue, which
includes a pending petition
of certiorari to the Supreme Court.
So this is big-time stuff.
On the merits, the litigation is raising
constitutional issues
about equal protection
and privacy rights, but that
won't be our focus today,
although it may well come up.
That's not our chief focus today.
Instead, today we are going to be focusing
on another set of issues
raised by the litigation.
We'll be focusing on what I think of
as the quintessentially legal issues
of who gets to decide what
the law is on this question
and through what procedures
must those decisions be made.
So for example, in taking
action in this field,
federal agencies have
used guidance documents
that don't follow the legal formalities
that generally apply to
binding agency policy making.
The statute that governs that is called
the Administrative Procedure Act.
You may hear reference to
that in other people's talks.
Are the agencies allowed to do this?
The agencies are asserting that courts
must defer to their
interpretation of the law.
Is that right or is this an issue
that the courts ultimately
are going to get
to decide on their own
without deferring to anybody?
These are the kinds of issues
that we're going to be focusing on today.
If you're first years, you'll find out
that you're going to take a whole course
that focuses on these kinds of issues.
It's called Legislation
in the Regulatory State.
If you've taken that class,
please don't break out in hives.
(audience laughs)
We told you it would be relevant
to your future life and here you go.
I will also have the honor of introducing
our panelists very briefly.
We're going to be starting
with Professor Gabriel Arkles,
one of our own graduates,
who's here today from the faculty
at Northeastern University School of Law.
His pracs experience and
his research interests
include the intersection of
gender, race, and disability
in criminal law and punishment.
And he'll be speaking from
some of those experiences.
- Great, hi everyone.
Is the sound okay?
Can people hear me?
Great.
So I have what's in some ways the easiest
and some ways the hardest
role on this panel,
which is I'm going to situate for you
how bathroom issues have
been a part of trans activism
and trans legal advocacy
in the recent past.
And first, I've been asked
to address just a little bit
of vocabulary that we
tend to use when talking
about trans issues and trans communities,
recognizing that in addition to being new
to some of the legal
issues, some people may be
new to these issues as well.
So just very briefly,
there are many different
definitions one could
use for trans people.
One definition is that we are people
who find that the sex that
we were assigned at birth
is not fully accurate for us.
Trans women are people who are assigned
male at birth and who identify as women.
Trans men are people who are assigned
female at birth and identify as men.
Particularly important,
I think, to remember
in these discussions
is that there are also
many trans people who do not
identify as women or as men.
Non-binary is one of the terms used
to describe those people.
And when referring to
people who aren't trans,
one of the common terms is cis gender
which simply means not transgender.
I'm also gonna give just
one more possible definition
for trans and gender non-conforming people
which I think can also be relevant
when we're talking about
the realm of discrimination,
and that's people who are perceived
by others not to follow social norms
around gender in some significant way,
in some way that's significant enough
to expose people to
discrimination, violence,
or harassment on that basis.
So that's not about how
one sees themselves.
That's about how other people perceive you
in relation to these
still incredibly prevalent
norms we have socially about gender.
So with that background,
I'm gonna talk about
the role of access to
bathrooms and trans activism
and trans legal advocacy
in three main ways.
So the first is bathroom
access as bathroom access,
what trans communities
have done and experienced
in trying to be able to
simply use the restrooms.
The next is going to be about how issues
of bathrooms get raised
when trans people and allies
are advocating for things
that don't, on their face,
seem like they have anything
to do with bathrooms,
sort of diffusing anxiety about bathrooms
when it comes up in other contexts.
And last is going to be about bathrooms
as a subset of sex
segregated institutions,
of which we have many
if you think about it.
Bathrooms is one example,
but we also have homeless shelters,
domestic violence
shelters, prisons, jails,
military, dormitories,
locker rooms, sports teams.
Any institution where there's a division
based on a certain
understanding of binary gender
is going to be an institution
that will sometimes
clash with the existence of trans people.
So to start out, talking about
access to bathrooms in and of itself.
And when I talk about this,
part of the reason why it's hard
is that I have all of
these different memories
that are flooding me, from clients,
from coworkers, from friends,
from my own experiences.
In this building, I have
this visceral memory
of being so afraid to use the bathroom
every single time I did for
three years in law school,
and trying so hard to
pretend that I wasn't afraid.
I think about my friend who's
now also a law professor
and going to the court to support him
after he got arrested
for using a men's room.
I think about one of my very first clients
in my second summer internship
who was an older Latina trans woman
who was street homeless, painfully hungry,
had literally nothing.
And when she went to apply
for public assistance
like many people, she got a number
and had to wait for many hours.
When she eventually used the restroom,
security then ejected her for using
what they perceived as the wrong restroom
and barred her from
reentering the building.
So she couldn't even apply
for public assistance.
And I think there's still
a tendency sometimes
when talking about bathroom access
to either trivialize it and crack jokes
or to focus solely on the
anxiety and discomfort
that cis gender people may experience
when confronting trans
people in bathrooms,
or to get really abstract,
and so I just wanna take
a moment to acknowledge
that in terms of lived experience,
it's an incredibly serious issue.
And I don't think it's
an exaggeration to say
that at times it's actually
a life or death issue.
And so the sort of recent
history that I'm going
to talk about in terms of bathroom access,
one of the strategies
that people were using
right around the turn of the century
was working with non-discrimination laws,
often state non-discrimination laws,
and litigation around bathroom access.
And that didn't have really
great success overall.
One of the cases from that
time was when West Group,
which you should all know from West Law,
told one of their
employees, a trans woman,
that she couldn't use
either the women's restroom
or the men's restroom, but
she had to go to another floor
or another building to use
a single occupancy stall.
She suggested that instead
they do some education
on trans issues and permit
her to use the restroom
with the other women.
They said that they would
fire her if she didn't comply.
She quit and sued, and that got appealed
all the way up to the
Supreme Court of Minnesota,
and Minnesota actually had an explicitly
trans-inclusive, non-discrimination law.
But the Supreme Court of Minnesota said
that this was not actually discrimination
on the basis of self image that may differ
from biological maleness or femaleness,
which was how that statute
had defined the protections.
They said this is simply a neutral policy,
so she lost that case.
And I think that many of us start to shift
to look to state and
local agencies that were
charged with enforcing
non-discriminator law
to start giving some guidance
on how to enforce it.
So in many municipalities, in particular,
New York City, D.C.,
D.C.'s really a leader,
San Francisco, a handful of others,
were able to get some
administrative guidance
that would say okay, so if
you're not discriminating
against trans people,
part of what that means
is trans people have to be able to use
the facilities consistent
with their gender identity
and either recommending
or requiring that at least
some restrooms be made gender neutral
so that everybody could access them.
And so we got some more traction there,
and that did help with some cases.
I don't know if anybody
knows the restaurant,
the Caliente Cab Company, which is not far
from here in the West Village.
When they ejected a black lesbian woman
for using the women's restroom,
she was able to go to court about that.
Or actually she went through
the agency process, right,
and she was able to get a
good settlement out of that.
So the administrative realms is something
that we were using a lot,
especially at the state and local level.
The federal level only became possible
a little bit more recently
under the Obama Administration
with some of the other shifts in culture.
And then just to give some
examples of other situations
where bathrooms arise
where you might not think
that they would arise, back in 2006
we were working with another local agency
here in the Department of
Health and Mental Hygiene
to try to make it
possible for trans people
to update our birth certificates
to reflect our accurate sex.
And we had done a lot
of work with the agency
and gotten them to propose a formal rule,
that it seemed like we
had a lot of buy-in for.
There was a public hearing,
lots of people testified.
Everybody testified in favor of it.
Then the media picked up the story,
and the New York Times in particular
ran a sort of dreadful story that said
that if we were able to get
accurate birth certificates
then it would permit men in wigs
to invade women's bathrooms
and commit sexual assault.
And there was suddenly
a flurry of opposition
and the agency withdrew
their proposed rule.
But also there was a 10th
Circuit case, Etsitty,
where a trans woman was fired
from her job as a bus driver.
One of the legitimate, non-discriminatory
reasons that they put forward was that
it was possible that when she was driving
the bus she would have to use the bathroom
on the way and somebody
in one of those locations
might be concerned about
her using the bathroom,
whichever bathroom she chose.
And the court accepted that as a possible
legitimate non-discriminatory reason,
even though nobody had
actually raised any concerns
about her using any bathrooms anywhere.
And then the last area
that I want to touch on
is just the broader area of
sex-segregated facilities,
which again, as I said,
there are a wide variety of institutions
that are set up with
an idea that there are
two natural completely
separate, meaningful,
apolitical, unchanging,
stable gender categories.
And when they run up against
the sort of inconvenient
existence of trans people,
then often trans people get hurt.
I'm wrapping up, promise. (laughs)
- [Deborah] I hate my job.
- And most of my work has been
how this has come up in prisons.
And again, it gets used in
a wide variety of context.
There was an en banc 1st Circuit decision
just last year saying that a trans woman
couldn't get access to
gender-affirming surgery
in part because the court was concerned
that if she got the surgery
she might not be enough of a man
to continue to confine
her in a men's prison,
but still wouldn't be enough of a woman
to be confined in a women's prison.
And clearly, she had to be locked up
in one of those places,
therefore she couldn't have surgery.
But just very, very briefly,
we've also had a number of successes.
And again, it has often in the past
been at state and local agency levels.
So we got changes in the
Department of Homeless Services
here in New York City to allow trans women
to be in women's shelters,
which has decreased street
homelessness for trans women.
It's not perfect by any
means, but it's something.
And I was a part of getting the
Office of Children and Family Services
here in New York also
to say that trans youth
in detention as juveniles may be placed
based on gender identity, can
have access to hormonal care
if they need it, and
regardless of their facility,
can have clothing that
matches their gender identity.
So there's sort of a long history
of our trying to maneuver
in different ways
that have often ended up being through
some agency process or
another to try to navigate
these problems when they
come up in our communities.
Now, I'll end.
- Fantastic, thank you.
I also want to welcome Professor Arkles
back to the law school.
He was here as a lawyer and faculty member
for several years, which
is when I first met him.
This is a great day for
the lawyering faculty
because Professor Scott Skinner-Thompson,
who will be speaking next,
is a current member of
the lawyering faculty.
And he has taught on and does research on
issues of privacy law,
family law, and health law,
with a particular focus
on LGBTQ and HIV issues
and has been a frequent media commentator
on the issues that we
are dealing with today.
Scott.
- Thanks so much, Deborah,
and thanks to all of you for taking time
out of what I know are busy schedules
to get engaged on this important topic.
The substantive part of the legal dispute
over which bathrooms
transgender people should use
is how to define and determine sex
within the meaning of certain
federal civil rights statutes,
namely Title VII and Title IX.
Does it mean the sex assigned
on someone's birth certificate,
a particular aspect of our
genetic or anatomical makeup,
or our gender identity?
And as Deborah foregrounded,
there's the procedural
issue of who gets to decide:
Congress, the courts,
administrative agencies
charged with enforcing federal law,
an individual student,
that student's doctor,
that student's parents?
These substantive and
procedural issues overlap.
As with many legal questions,
a good place to start is the
text of the relevant statute
and the relevant regulations.
Here we're focusing on Title IX.
Title IX provides that no
person in the United States
shall, on the basis of sex, be excluded
from participation in, be
denied the benefits of,
or be subject to discrimination
under any education program
receiving federal financial assistance.
The text of the statute
specifically permits
separate living facilities
for different sexes,
but the text of the statute is silent
as to how sex should be defined.
The Department of Education's regulations
implementing Title IX likewise prohibit
discrimination on the basis of sex,
but provide that a recipient
may provide separate toilet,
locker room, and shower
facilities on the basis of sex.
But the regulations too are silent
and don't provide much instruction
as to how to define sex.
So what have courts said
about this language?
Even before the current
controversy over bathrooms,
courts interpreting what
counts as sex discrimination
under Title IX and the
employment analog, Title VII,
have taken a broad view
of sex discrimination.
Courts, including the Supreme Court
in a case called Price
Waterhouse v. Hopkins,
have concluded that sex discrimination
includes discrimination
based on sex stereotyping.
That is treating someone differently
based on a failure to
adhere to majoritarian
norms or stereotypes about how a person
of that sex should behave
is sex discrimination.
And even Justice Scalia recognized
that same-sex harassment,
that is where a man was
harassed by other men,
could constitute sex discrimination.
As Scalia concluded in
a case called Oncale,
while male-on-male harassment
wasn't the principle evil
Congress had in mind
when it passed Title VII,
statutory prohibitions often go beyond
the principle evil to
cover comparable evils.
And it is ultimately the
provisions of our laws,
the texts of our laws, rather than
the principle concerns of our legislators
at the time those laws were
passed which govern us.
While not uniform, several circuit cases
addressing the treatment
of transgender individuals
under federal sex discrimination statutes
have provided robust protections
for transgender individuals.
For example, in Smith v. Salem,
the 6th Circuit held
that a transgender woman
can bring sex discrimination claims
when penalized for wearing female clothes
or otherwise acting feminine.
The 9th Circuit in Schwenk v. Hartford
issued a similar ruling with regard
to a transgender female prisoner
under the Gender Motivated Violence Act.
The 1st and 11th Circuits
have held similarly.
Other circuits, such as the 7th Circuit
have reached different conclusions.
From this body of law, we step
into the current controversy.
Whether Title IX's prohibition
on sex discrimination
requires schools to permit
transgender students
to use bathrooms consistent with their
gender identity or permits schools
to exclude trans students
from such bathrooms.
The issue of how schools should treat
transgender students has been
percolating for a few years.
For example, in 2013, the
Department of Education
in a school district in
California called Arcadia
reached a settlement which required
the school district to
let trans male students
use the male bathroom, and there have been
other similar settlements since that time.
And in response to
complaints and questions
regarding trans bathroom access,
the Obama Administration issued a series
of interpretive documents.
For example, in December
2014, Attorney General Holder
issued a memo concluding that Title VII
includes discrimination
based on gender identity.
In January of 2015, the
Department of Education
Office of Civil Rights
issued an opinion letter
saying Title IX regulations
require students
to be treated consistent
with their gender identity.
With those administrative
guidance documents popping up,
things came to a head, thanks,
when in March, North Carolina passed HB2
which conditions bathroom access
on one's supposed, quote
unquote, biological sex
defined as the sex assigned
on one's birth certificate.
This is obviously
directly at odds with the
interpretation of Title IX that requires
equal access for transgender individuals.
In response to the North Carolina law,
in May the Department of Justice
and Department of
Education issued their most
recent and most formal to date guidance.
Importantly, none of the administration's
Title IX interpretive documents specific
to transgender bathroom access
were subject to public comment
or notice-and-comment rule making.
However, the Housing and
Urban Development Agency
recently did issue a rule that was subject
to rule making and
concluded that transgender
access to shelters must be based
on someone's gender identity.
And this is where we get to
some of the process issues
which Deborah mentioned.
By way of background on
statutory interpretation
and administrative law,
courts get to decide
what the statutes mean
using a wide range of statutory
interpretation tools
including plain meaning.
However, under certain
deference doctrines,
one in particular called Chevron,
if a court concludes
that the statutory text
is ambiguous then courts will defer
to the agency's permissible
interpretation of that statute.
And similarly, under a
doctrine called Auer deference,
if an agency rule, Chevron deference deals
with whether or not the
statutory text is ambiguous
and Auer deference deals with whether
the regulatory language is ambiguous.
If the regulatory language is ambiguous,
then agencies get deference
in interpreting their own rules as well.
So here in addition to the question
of how the text of Title
IX should be interpreted,
and how the text of the
core spine regulation
on sex-segregated bathrooms
should be interpreted,
is the question of whether
the administration's
interpretation of its
regulation and the statute
are in entitled to some kind of deference,
courts need to defer to them,
or if courts should look
straight to the text
of Title IX and interpret the
statute, ignoring, in essence,
what the administration
has to say about it.
It's a complicated
administrative question.
My view is that because the regulation
is the portion of the relevant law
dealing with sex-segregated facilities,
which is to say, if you recall,
I said at the beginning that Title IX
actually doesn't address whether bathrooms
need to be segregated but
that's in the regulation.
Because that's the case,
the administration is
entitled to deference
in interpreting its own regulation,
assuming that the regulation is ambiguous.
And as I said, it is ambiguous
because the regulation doesn't define sex
and the statute doesn't define sex.
The 4th Circuit in a recent case involving
a person named Gavin Grimm out of Virginia
reached this very conclusion.
There, Gavin, a high school student
challenged his exclusion
from male facilities,
and the 4th Circuit deferred
to the agency's interpretation
of Title IX and its corresponding rule
concluding that everything was ambiguous
with regard to sex and therefore,
deferring to the federal government,
the 4th Circuit held
that Gavin was entitled
to use the bathroom entitled
with his gender identity.
That school district,
as Deborah mentioned,
as filed a cert petition
with the Supreme Court
and it's not fully briefed yet,
but we'll get a ruling
sooner rather than later.
Other courts, including a district court,
the Northern District of Texas, disagree.
That case involved a suit
by the state of Texas
and several other states challenging
the Obama Administration's May guidance.
The district court
there held that Title IX
regulations were not ambiguous,
that it defined sex in relation
to biological differences.
And therefore, the agency's interpretation
isn't entitled to deference,
and the District Court
has purported to stay
enforcement of the Obama
Administration guidance.
So separate and aside from
the level of deference
owed to the Obama Administration,
and here I'm moving back to
the substantive question,
is the issue of what is the best reading
of the term sex in both Title IX
and the corresponding regulations?
Is the best reading
defining sex with regard
to one's gender identity
or is the best reading defining it
with regard to a narrow
aspect of one's sex or gender,
such as one's external genitalia
or the somewhat arbitrarily assigned sex
that goes on someone's birth certificate?
My view is that defining sex in terms
of an individual's gender identity
is the best interpretation of the statute,
irrespective of whether or not
the agency interpretation
is entitled to deference.
Why is that the case?
First, even dictionary definitions of sex
in the 1970s suggested
that sex was the sum
of both our physical and
behavioral characteristics.
Second, as Deborah
suggested in the beginning,
our medical understanding
of sex and gender
has become more nuanced,
and science now suggests
that factors contributing
to one's sex are multifaceted,
including, yes, our external genitalia,
but also our internal reproductive organs,
our gender identity, our chromosomes,
secondary sex characteristics, and genes.
You get the point, it's not that simple.
There is no one defining
biological characteristic.
All of our bodies are different.
There's no such thing as a male body
and a singular female body.
Third, even if you take
the definition proposed
by some of the states and
rely on biological sex,
that doesn't resolve any ambiguity
because many people possess
physical characteristics
traditionally associated
with more than one gender.
As the 4th Circuit observed
in its Grimm decision,
it's not clear that
reliance on biological sex
would resolve ambiguity.
For example, which room
would a transgender
individual who had undergone
gender confirmation surgery use?
What about an intersex individual?
What about an individual
with XXY chromosomes?
What about an individual who lost
external genitalia in an accident?
In other words, defining sex
in terms of gender identity
is the only interpretation that actually
avoids inconsistencies and
creates a uniform rule.
As such, it is the best reading,
and I look forward to your questions.
- Thank you so much.
I gave Scott an incredibly difficult task
in having to do the
work of actually laying
out what this complex litigation is about,
and I really thank him for that.
We turn now to Professor Jacob Gersen,
who comes to us today
from Harvard Law School.
He publishes extensively on
issues of administrative law
and statutory interpretation
in many contexts.
He's the author of a forthcoming article
with his colleague Jeannie Suk,
called "The Sex Bureaucracy,"
which explores and critiques
federal agency regulation
of sex and gender identity
in a number of spheres,
and that's why we invited him here today.
So thank you.
- Great, thanks for having me.
Thanks to everyone for coming.
I already learned a lot.
I know I will learn a lot
more as the discussion ensues.
I come to the field
from administrative law
which is really a field
about how the government
usually administrative
agencies, but all of the state,
can do, what they can do,
and the ways in which it's
legal or illegal to do it.
So it is a field about how
to use procedural mechanisms,
procedural requirements, to
control government conduct,
generate desirable outcomes,
and produce legitimate,
effective, and lawful action
by administrative agencies.
That kind of the whole structure
and premise of the field.
So what I wanna try to do today
is situate a part of this debate,
really this one particular 2016 letter,
in the context of administrative law,
to really see the contours
of what that litigation
is looking like and I
think will look like.
So in 2016, the Department of Education's
Office of Civil Rights in conjunction
with Department of Justice,
issued really I think the core
of what we're talking about today,
a Dear Colleague Letter,
2016 Dear Colleague Letter.
And that document states many things,
some of which I'll talk about,
but the core, the main
one, is that Title IX,
which prohibits discrimination
on the basis of sex
in educational institution,
means internal sense of gender.
And everything else in
the rest of that document
more or less flows from
that basic premise.
And that, I think, is actually a question
of statutory interpretation.
That term is a statutory
term with this agency.
This administering agency is interpreting.
And so once that's done,
all the rest of the Title IX apparatus,
which is a pretty extensive apparatus,
you might have heard
about it in the context
of campus sexual assaults
and sexual violence,
access to education, a
whole range of requirements,
all will apply to an
internal sense of gender.
I think that much is totally clear,
although some of those
implications have not yet
been entirely fleshed out.
So as you've been hearing about,
that substantive position is
being challenged and litigated,
the substantive interpretation.
This is an incorrect
interpretation, the argument goes.
You've heard otherwise today.
But it's also been
challenged procedurally.
That is the way the agency
chose to offer this interpretation
to make this policy was
procedurally defective
and therefore, the policy itself,
whether fantastic or horrible is unlawful
or illegal or invalid.
So I just wanna try to explain why that is
or what the argument is.
So as many of you know, when an agency,
Department of Education,
Environmental Protection Agency,
HUD, any of these agencies, make rules
or equivalently, regulations,
it is when they announce a new, binding,
legal requirement that
you and I, or schools,
have to comply with they have comply
with the Administrative Procedures Act.
This is a big statute
from 1946 that controls
almost everything agencies do.
They have to comply with the Constitution
and other statutory requirements too.
And the way that agencies
typically comply with that today
is to use a process
called notice-and-comment.
It's called informal rulemaking,
notice-and-comment rulemaking.
It's relatively straightforward.
You publish a proposed rule
in the federal register.
This is what we wanna do,
this is what we think.
You give people a chance
to send you comments.
You revise your view of
what's the best thing to do.
You don't revise and then you
explain all those decisions.
You respond to comments, and
you publish a final rule,
along with this concise
statement of basis and purpose
which has become essentially
an elaborate counter justification.
This is why we're doing what we're doing.
We got this comment.
Here's why we don't think
it's a good idea to do that.
Here's why we do think
it's a good idea to change,
and this is what we have decided.
And that statement of basis and purpose,
that final rule and that statement,
the response of comments,
becomes the source
or foundation for any
subsequent litigation.
That's what we're gonna go challenge.
Notice, public participation,
reasoned explanation,
you've gotta give an
account of why you are doing
the good thing that you are
doing, and judicial review.
Now, these are hoops which
you might like or might not.
They're kind of not that extensive,
but they can be a pain in the neck.
They can take a long time.
When you give the public
a chance to comment,
you have to deal with public comments.
(audience laughs)
And if you have to litigate,
you might get a judge who
doesn't like what you did
and that can take a long time.
And so even though these aren't
crazy hoops to jump through,
they're hoops, and agencies
will often prefer not to do so.
So the idea is if you
can accomplish your ends
as a government agency, that is,
get everyone to comply with
your vision of the law,
change their behavior to comport
with what you would like them to do,
without having to deal
with that painful process
of notice-and-comment and litigation,
you really, really rather to do that.
It's just cheaper, it's
easier, you can just do that.
And as it turns out,
the APA has an exception
to this broad, general
notice-and-comment requirement.
So if you're just issuing
a interpretive rule
or a general statement of policy
or a rule of agency practice
or procedure or organization,
you don't have to go through
all that procedural formality.
You don't have to jump through that hoop.
And the basic idea is if
you're not making law,
if you're not doing
something important or new
or affecting rights or
obligations, we don't care.
If you're just restating what the courts
have already said, no problem.
If you're requiring
people to submit petitions
on blue paper instead of red paper,
we don't need notice-and-comment
for that kind of thing.
So we have these exceptions.
But the idea is that you have
to really be offering
a non-binding position.
It has to really be tentative.
You have to really be just clarifying
or restating the law.
And if you're not, then what you've done,
at the end of the day, is invalid.
And just to be clear, to state
what I think you see already,
the agency always wants to say
it's merely restating or clarifying.
It's not doing anything new.
Don't worry about it.
And the regulated parties always say
the agency is imposing a
new, binding legal obligation
and they had to use
notice-and-comment to do it.
That's just always, always,
always a procedural posture,
so that won't ever change.
Now, the body of law that's
grown up in this area
is known as the legislative rule doctrine.
If the agency announcement
has the force of law,
or it's practically binding
even if the agency says it's not,
then it's a legislative rule
and the agency has to
use notice-and-comment
to issue it, for it to be valid.
So what's the 2016 Dear Colleague Letter?
Well, according to OCR
and DOJ, it's guidance,
an opinion letter, it's guidance.
Quote, "This letter
summarizes a school's Title IX
"obligations regarding
transgender students
"and explains how the U.S.
Department of Education
"and Justice evaluate
a school's compliance."
Quote, "The guidance
does not add requirements
"to applicable law.
"It provides information
and examples to inform
"recipients about how
the departments evaluate
"whether covered entities are complying."
What are its terms?
Quote, "The departments treat
a student's gender identity
"as the student's sex for purposes
"of Title IX and its
implementing regulations.
"This means a school must not treat
"a transgender student
differently from the way
"it treats other students
of the same gender identity.
"A school may provide separate facilities
"on the basis of sex,
"but a school must allow
transgender students
"access to such facilities
"consistent with their gender identity.
"A school may not,
however, adopt or adhere
"to requirements that rely on
overly broad generalizations
"or stereotypes about the
differences between transgender
"students and other
students of the same sex."
Now, other Dear Colleague letters
issued the Department of Education
and Office of Civil Rights,
of which there have been many,
so this particular agency
has chosen to make policy
in this particular way.
That's not true of all of
the federal bureaucracy,
but it is true these days of OCR.
So other Dear Colleague letters
purport to be nonbinding.
They say this is a
nonbinding, legal document.
We are advancing tentative views
about what we think people should do,
but it's not mandatory.
This one doesn't really do that at all.
Those obligations are
mandatory obligations,
and I think it's hard to read the letter
as imposing anything other than that.
So the legality of the
government's position,
if that's right, turns entirely on whether
these clear, mandatory obligations were
quote, preexisting, and just
summarized in the DCL or not.
Other people know the
substantive area of law
better than I do, and so I'd
like to hear more about that.
But I think at least
many regulated parties
perceive the DCL as
imposing new obligations
they were not aware of before.
And I think part of the
overall public reaction
is consistent with that view too.
That is what one court has held so far.
I suspect other courts
will hold other things.
And again, that turns
entirely, in my view,
on what the preexisting
legal obligations were
before the letter was offered.
Now, every so often I get a question like
why should we care about
these process objections?
As long as the policy is a good one,
a policy that I know in my
heart is just and right,
why should I care about process?
Indeed, would you please
stop talking about process?
Would you please just stop talking?
(audience laughs)
And in short, even though it sounds
kind of hopelessly naive,
or my notes say hopefully,
but I think it was hopelessly naive
(audience laughs)
I believe in administrative law.
Or rather, I believe
that administrative law,
the set of rules that
restrict how the government
can act when it deals with citizens,
is much, much better than the alternative.
It is the administrative law analog
to Churchill and democracy.
It's not great, but it's
sort of what we've got.
Beyond that, it's the law.
These obligations aren't optional.
Bicameralism and presentment as specified
in Article 1 Section 7 are
a huge pain in the neck
if you are trying to make a good statute.
If you're trying to enact change,
they're awful, but they're the
constitutional requirements,
and I'm happy the House
just can't stand up,
this House can't just stand up and say,
"This is the new law of the land,"
even though the Senate and
the President disagree.
I view these requirements
as part and parcel
of that overall bundle of
procedural protections.
There is, I think, I hope, I know,
a relationship between
process and substance.
It should not be too hard to imagine
what a different party,
in control of a different
Department of Education might do
without procedural protections like these.
And I think we should hold our party,
whatever party that happens to be,
to those same standards.
Now, this relationship between
process and substance is there.
You know it's there, I know it's there.
The Department of
Education knows it's there.
That's why the agencies
are proceeding in this way.
My best guess is this policy, this letter,
this guidance, this rule, looks different
at the end of the day if it
goes through notice-and-comment.
Now, if you love this
rule, the substance of it,
then yeah, you should be sad
that it might have to go
through notice-and-comment.
But nevertheless, it's
precisely because getting
public input, responding
to public comments,
and having to give a public account
of why you are doing what you are doing,
why your interpretation is in
fact the best interpretation,
which I think is lacking
in this document, honestly,
is a desirable thing.
Just to put my cards on
the table and I am done.
Even though I truly
support many, if not all,
the substantive policies adopted,
I do not support this way of making law.
I have a belief, an
evolved, derived belief
that both institutions and individuals
are much more likely to do ill and err
when they deviate from the set of rules
governing how they are supposed to act.
I think it's true of the government,
I think it's true of schools,
I think it's true of corporations,
and I think it's true of us.
- Thanks very much.
So our final speaker will
be Professor Sophia Lee
from the University of
Pennsylvania Law School.
Professor Lee is a legal historian
whose scholarship and teaching synthesizes
constitutional law and administrative law.
And she has written on
administrative agencies' role
in our history in shaping constitutional
and civil rights law.
I thought to invite her here today
to answer the question
is this just what history
looks like when you're living through it
or is there something different happening
around this controversy than
has been the case in the past.
- Great, well, thank
you all for coming today
and thank you so much,
Deborah, for inviting me.
This is one of my favorite
subjects to get to speak about,
so I'm very happy to be
here with you all today.
And I'm gonna now back
us way, way, way out.
We've been really in
the nitty-gritty weeds
of a very difficult
substantive legal issue
instead of procedural questions.
And I'm gonna take us sky high.
So my role here is to
put this question of who
should be deciding civil rights policy
in historical context,
and I thought I'd approach that
from a few different perspectives.
I'm gonna start at what I'll
call the 30,000-foot level,
which is really dialing out,
both in terms of temporal sweep
and levels of abstraction.
So from the sweep of American history,
how unusual is what we're seeing today,
and thinking in a general plane.
Then I'll take us down
to about 15,000 feet,
and we'll be looking mostly at the modern
administrative state,
what has really grown up
in the wake of the New Deal,
how unusual is what we're seeing
in that more narrow context,
and also how unusual is it in terms
of the very particular
forms of policymaking
that we're seeing here, what
we've been talking about,
which is really the government
giving money to people
and putting strings to it
and when those strings take the form
of various civil rights laws.
And then close by taking us back down
to the ground level, the here and now,
and some of the nitty-gritty
that we've been talking about.
And so the overall takeaway
I hope you'll share with
me at the end of this
is that when we look at
this in the big sweep,
at the 30,000-foot, the 15,000 foot level,
this doesn't look so new.
This looks pretty usual.
That said, I do think
there's some noteworthy
trends we see happening,
or shifts in the trends
that we see happening when
we get close to the ground.
So I'll start us out at 30,000 feet
and in the long history of agencies
taking the lead on issues that, today,
this is not the language that
people used in the 19th century,
but today we think of as
civil rights and civil liberties issues
and make the case that that is, in fact,
how it's been throughout most
of the country's history.
And the fact that agencies
have taken the lead,
I think, is really the
result of two dynamics.
One is that for much of
the nation's history,
courts and Congress just
were pretty inactive on these issues.
They weren't doing much,
which just left a void
for agencies to fill.
They became sort of the de facto deciders
of these kinds of issues.
The other dynamic is one we've
heard a little bit about today,
which was a degree of
deference by both courts
and Congress to agencies.
Let the agencies figure
it out on the ground
and experiment, and then
the courts will come in
or Congress will come in
and codify that approach
as a more formal, official kind of law.
So this pattern dates
back to the 19th century,
and I'll just give you a couple examples.
What we would think of today
as communications privacy law,
back then what we thought
of as can the government
open my letters and read
what's inside them, right?
When we think about how we understand
the kind of privacy that
we have in our letters
back in the 19th century,
the kind of Fourth Amendment
protections for mail
was something that was worked out
largely by postal officials
and then eventually adopted by the court
in a late-19th century decision
called ex parte Jackson.
I'm gonna drop a few names
of historians throughout this
'cause I'm always hoping
to promote the work
of people who do the
history of administration
in the hopes that some of you
will wanna go out and read this.
There's a great article by Anuj
Desai on this very subject.
And he explains and here
I'm quoting him, that
"the constitutional
principle voiced in Jackson
"was simply the Supreme
Court's affirmation
"of long-standing law and custom
in the Post Office," okay?
Another area in the 19th century
where this was very much the case
was what kinds of due process protections
you have when you're
going before an agency
and it's adjudicating some
kind of claim that you have.
And here, again, Congress really specified
the kinds of procedures
agencies should follow
when they adjudicated
minimally and erratically
in the 19th century.
And courts basically refused to review
due process challenges that people brought
about the ways agencies
treated them in adjudications.
And so here's another name to drop.
Jerry Mashaw has a
history of how much more
administration in the
19th century looks like
what we're used to in the 20th century
then a lot of people think.
And he describes the Supreme Court
in the late 19th century
as seeming, as he put it,
exasperated by due process claims
that were coming to the court.
And he points to an opinion
in which the Supreme Court insisted,
and here's a quote from the court,
"Due process of law does not necessarily
"require the interference of
the judicial power," okay?
So this was a time
where court and Congress
are really just not that
interested in being involved,
and so agencies filled the void.
They didn't give no procedures.
They actually developed
fairly elaborate procedures,
fairly consistent procedures,
and in fact, Mashaw
points out that the way
veterans' pensions claims were adjudicated
in the 19th century
doesn't look that different
than the way Social
Security disability claims
are adjudicated today.
Now, you might have complaints
about the procedures
in those disability claims today,
and those hearken back,
but the point is agencies
with a blank check
didn't just do nothing,
they did something,
and they did something not that different
than our modern system
requires them to do.
And this pattern really
persisted throughout
the 20th century, even
as courts began reviewing
agencies more aggressively.
So they started caring more
about the due process
claims brought to them
and after Congress passed the APA
and set these procedural requirements
for the whole federal bureaucracy.
So you still see agencies taking the lead
in the 20th century,
with court and Congress
adopting or later
ratifying those policies.
And federal anti-discrimination law,
employment discrimination
law's a great example of that.
Before we got Title VII of
the 1964 Civil Rights Act,
it was really agencies that took the lead
in figuring out ways to counter
employment discrimination,
develop ideas that we would later come
to put the label affirmative action on.
And after Title VII was
passed, that continued.
There's a type of discrimination
under Title VII called disparate impact
which really focuses on discrimination
that is not necessarily intentional
but has a bad effect for a
particular protected group.
That was basically a
concept of discrimination
developed in administrative agencies
in the Equal Employment
Opportunity Commission
and other parts of the federal government
that the Supreme Court later adopted
in the decision called Griggs
versus Duke Power Company.
The idea that pregnancy discrimination
is a form of sex discrimination
started in the EEOC
and later was rejected by the courts
but agreed to by Congress,
and they passed a statute
saying yes, indeed that is the fact.
Okay, so that's 30,000 feet.
If we come down to 15,000 feet,
really see the same pattern happening
even if we're looking more
narrowly at agencies' use
of their spending authority
like we have in the current
issue around bathroom access,
and if we look more recently
at the modern administrative state.
So think about the core
ways the government
has used its funding as in what we think
of today's cooperative
federalism policies,
ones where the federal
government basically
funds programs that are administered
at the state and local level.
Income assistance, what we
call generically welfare,
has been a classic example of that.
We tend to think that welfare recipients
got a right to a fair hearing
when the Supreme Court
said so in the early 1970s,
or when poverty lawyers,
many of them associated
with this institution,
generated those kinds of
claims in the late 1960s.
Well, in fact the idea
that welfare recipients
have due process rights to a fair hearing
and equal treatment rights
was actually generated
by federal administrators
when those programs
were first created in the 1930s and 1940s.
So this idea of administrative agencies
taking the lead, whether we're thinking
in the big sweep of history
or in the more recent
rise of spending clause kinds of policies
that are at issue here,
it's really nothing new.
Okay, so let's come down to the ground,
and think a little more
closely about today.
And when we get to that level,
I would say there are
some things that seem new
or at least seem newish, maybe.
And I think this is true,
both of the structures
of deference that we've talked about,
and the techniques that agencies use
when they take the lead on these kinds
of civil rights and
civil liberties policies.
So first, the structures of deference.
Okay, so part of what I'm saying to you
is for the first 150 years, really, plus,
of our history, courts were
pretty deferential to agencies.
We could maybe even go
to the first 200 years
and say that was the case.
They have gotten less deferential
over the last 50 years.
At the same time, I think
agencies have gotten
less adventurous and more
deferential towards courts.
So it is more the case in
the last 50 years, say,
and particularly it's been increasingly so
that agencies, when they take the lead,
tend to try to avert to
some kind of judicial
doctrine that supports their position,
whether or not people might agree
that that's a very
adventurous interpretation
of that judicial doctrine or not,
there is an effort to
dress up what they're doing
as following courts rather
than leading ahead of them.
This had led to somewhat ironic result
where you have agencies
citing more judicial precedent
at the same time that they are
receiving less deference
for what they're doing
from their justifications from courts.
I think there's also
been shifts in the forms
of administrative leave taking,
and this is very impressionistic,
but I think the proportion
of agency action
in this area that is happening through
these kind of guidance documents
or Dear Colleague letters
as opposed to through
notice-and-comment rulemaking,
that more elaborate procedure
that we were just hearing about,
or even adjudications where parties
have more kind of procedural rights.
I think that may be changing.
I think we're seeing more
action through guidance.
So particularly in the spending area,
I think that guidance has
been a big part of the story.
And I think these two trends come together
in a way that raises
questions about the future
of agencies taking the lead in the area
of civil rights and civil liberties.
We certainly have right
now a court in which
the conservative justices, at this point
writing separately for the most part,
have indicated some deep
constitutional and statutory
concerns with the existing
deference doctrines,
the deference that's given
to agencies now by courts.
Those same justices also
seem skeptical and they share
Professor Gersen's
skepticism about agencies
using guidances and seem more inclined
to find that what an agency
claims as a guidance document
is really a substantive
rule that should have been
issued by notice-and-comment rulemaking.
We don't just see this in this area,
but also in the courts' treatment
of the President's
deferred action policies
for immigrants, undocumented immigrants.
So I think looking to the future,
probably the biggest question is not
whether agencies will continue
to take the lead, but how.
So are they going to
continue to rely so much
on guidances or shift to
more formal procedures
that we see in adjudications
or in notice-and-comment rulemaking.
And then if they do, are
courts going to continue
to defer to the
interpretations they produce?
So is it just an issue of
following the right procedures
and then courts will be happy?
Or is there gonna be a question
of whether there's deference at all?
And I don't think any of
these are gonna be decided
by a table full of lawyers
or a room full of lawyers.
I think a lot's gonna have to be decided
by the elections that happen
in a couple months from now.
- So I wanna thank all of our panelists.
How many of you are first-year students?
I think for those of you
who are first-year students,
you've just gotten an excellent overview
of what it looks like
to take a social problem
and see how it develops
as a legal problem.
You start with the lived experience
of the human beings whose
lives it's going to affect.
You look at legal sources
and legal doctrines
to understand how they shape
not only what the right answer is,
but who gets to make that answer.
And you understand the whole experience
that you've just gone through
through the use of
interdisciplinary methods,
in our case, history,
to get a sense of what's really going on
and what's really novel and important
in our lived experience as
lawyers in our modern period.
So for four of you to have
done that in 12 minutes each
I think is absolutely remarkable.
And I will say nothing more
because the rest of the time is yours.
We'd like your questions.
There will be people walking
around with microphones,
and since we're recording,
if you could please take a microphone
before you ask your question,
that would be great.
See the general rule that
happens in law school
is that if you don't start talking,
we're gonna keep talking.
And since you don't want that to happen,
you should have a question.
Yes, we have somebody down front.
- The microphone made me hesitate to ask,
but I have a question
for Professor Gersen.
I'm curious from your perspective
at what point would it
have been appropriate
or would it potentially in
the future be appropriate
for the DOJ and DOE to issue guidance?
At the point that they
issued the guidance,
there had been the 4th
Circuit Court ruling
on the Gavin Grimm case there,
which was very specific to the
guidance that they offered.
And then also a handful of
other circuit court decisions
interpreting sex to also
include gender identity,
Price Waterhouse, Macy
and I don't remember
all of the cases you named, Scott.
So at what point would it
need to be a Supreme Court
decision before it's appropriate then
for this federal guidance?
And there's also the issue then
when students complain
and file OCR complaints,
is it fair for DOJ to say this is how
it goes through our federal
adjudicatory process,
this is how we're going to side,
and this being sort of a fair
heads-up to schools implementing.
- If I could just say one thing.
We were told to watch
out for abbreviations,
so this isn't to fault
you, it's to fault us.
OCR is the Office of Civil Rights
of the Department of Education.
Go ahead.
- Thanks.
It's a great question, thank you.
So I think there are two issues.
One is suppose the agency
is offering policy.
Let's just call it
generic, which it might be
doing through guidance
or it might be doing
through making a new rule.
And if the agency is making
its own legal argument,
offering it's own interpretation,
I would, and this is just a personal view,
and lots and lots of
colleagues that I respect
enormously disagree with me.
I would prefer more of that go through
the notice-and-comment process
because I believe more of those outputs
will, in fact, be better as a result.
If the agency is really just stating
that the 4th Circuit
and/or the Supreme Court
require this and doing
no extra work at all,
then that's okay.
I don't have an objection to that.
On the other hand, there's
really no need for it.
So I do not happen to believe,
but you could tell me otherwise
and I could easily be convinced,
that this was understood
by all at this point
prior to the issuance of the DCL.
And if that really was
the preexisting federal
legal obligation that would be imposed on
or required of all citizens in schools
as a general matter, then fair enough.
And then the right
substantive interpretation,
as I talked about in the framework,
to evaluate that DCL, the
Dear Colleague Letter,
it did not impose any new obligations.
It merely restated the law,
and therefore is completely valid
as an exception to Section 553
of the Administrative Procedure Act.
That's a merits question,
and it's not a merits question
I have a strong view on.
I wanna try to make the
framework extremely clear
so that one could evaluate
that merits question
and point to an overall
trend in more policy making
being done through guidance.
And then really just to emphasize
that the temptation when you
are doing things that way
is to push the bounds a bit.
That's not a characterization
of this guidance.
That's a sudden characterization.
That's not a characterization
of this guidance,
but I've read a lot of guidance documents.
I've read a lot of guidance documents.
(audience laughs)
Too many.
(Deborah laughs)
And I'm telling you, the
temptation is to push the bounds.
That's true, not just of guidance.
It's true of deference, too.
So if I say to you or
the courts say to you,
the agency, "Hey, look,
I don't know much really.
"I'm the court, you're the expert agency.
"Of course I'm gonna
defer to whatever you say
"is the right thing."
They think, "Okay, then, I'm the expert.
"I know what the right thing to do is."
And you push the statute
a little bit harder.
And you walk into court,
and the court says,
"Well, I don't know, you're the agency.
"You're the expert, I defer to you."
And you push a little bit harder.
And so the cycle of administrative law,
historically for me, is not about a trend
towards deference or away from deference.
It's a cycle between those two extremes
because over time, agencies step further
and further out and at that
point, courts intervene
more and more aggressively.
And then having intervened
really aggressively
for five or 10 years,
courts look very silly
'cause they're not the experts
and here they are checking the agencies
who know all this
developing law and policy.
And the question is where in that cycle
an administrative law
deference and interpretation
we are at at the moment.
I don't know the answer to that.
- Additional questions.
Yes, we have somebody right here.
Let's get you a mike.
- I just have a followup to that question.
To what extent has the cyclical nature
depended on the makeup of the
court, and not just the real--
- [Jacob] Which nature, I'm sorry?
The cyclical?
- [Deborah] Cyclical, yeah.
- The cyclical nature depended
on the makeup of the court
rather than just the relationship
between the court and the agencies.
- So my panelists might disagree.
I think it is a function, in part,
of the makeup of the court,
but not in that kind of
Democrat/Republican way
that you might imagine.
And in my view, actually, that
explains less of the cycle.
So I think it's almost
an inevitable cycle.
I don't view it as a kind of pathology
or weird thing that the courts are doing
or the agencies are making mistakes.
I think both the courts and the agencies
are reacting in completely
predictable, reasonable ways.
The courts know that when
they really stick their nose
into the business of agencies,
they should be anxious about doing that.
They know that Congress
is supposed to make policy
and the agencies are
supposed to administer it.
And the courts are
generalists, not experts,
and so they should let
agencies decide what to do,
let agencies make policies.
So even as courts try to intervene,
they're very uncomfortable
over the course of years
and so naturally wanna pull back.
And when they naturally pull back,
the agencies naturally wanna step in,
not because they're evil
because they're doing good work.
Administrators are
desperately, by and large,
trying to do good work,
to make the world better,
to implement good policy,
and I think that's true here.
And I think probably
most of us in this room
think they have made good policy here.
And the question is if they
have made good policy here
should we nevertheless
have our own internal
anxiety about how they did it?
And I've tried to raise
questions about that,
but lots of people in
the room probably don't,
and on this panel probably don't,
and that's totally legitimate.
- Do others on the panel
wanna weigh in on that?
I should always ask that.
- Well, I guess I would just weigh in
in the cyclical versus long-term trend
part of the question, which is just to say
I think certainly if you look, say,
from the New Deal to today,
or maybe even from the
early 20th century today,
you can see moments of greater scrutiny
and less scrutiny on the part of courts
vis a vis agencies.
But I think if you look
in the grand sweep,
nonetheless, there has been a move towards
I'd say less deference overall,
even as there are oscillations
within that process.
And I also would agree that the deference
versus non-deference is not
always a ideological issue.
It's not predictable necessarily.
And how people feel
about agency adventurism
is not always predictable
either in a partisan way.
So I would by no means
want to reduce it all
to either a question of politics
or a simple linear narrative.
- And I don't have a
strong view on the trends
that Jacob and Sophia
have been talking about.
But with regard to this
particular guidance,
I think one way to frame it
that's helpful to me at least
is to ask whether or not
the Department of Education
and the Department of Justice are imposing
a new obligation or merely recognizing
the existence of transgender people
within the definition of sex.
And when it's framed like that,
I think that not only
the stakes are clearer,
but it also highlights they're not
actually doing much to the law.
They're just deciding
how the law that exists
should treat these people
who have always existed
but have for a long time been ignored.
- If I can for just a minute.
- Yeah, please.
- I would be curious.
So regardless of whether
agencies have to make policy
in this area through
notice-and-comment rulemaking,
I'd be curious to hear
my co-panelists' thoughts
on whether they should do it
whether they have to or not,
and I think we've heard
about some of the values
of doing it because it is the law
or because we think that
having these kind of processes
and procedures in place,
notice-and-comment
rulemaking serve a good
constraining role in agencies.
But notice-and-comment
rulemaking potentially
can be also a moment for
democratic deliberation
on these policy questions,
so they can serve other kinds of purposes.
And I think back to when agencies engaged
in equal employment
rulemaking in the '70s,
and in fact the FCC held public hearings
right here, I think somewhere
not too far from NYU,
and they were open to the public
for people to come and
speak on these questions
of whether or not AT&T should have to have
particular equal employment policies.
And so I guess I'm curious
whether you think that that,
regardless of its legal requirement,
a good thing for administration, for law,
for democracy, or a bad thing,
if this is the kind of area of law
where actually we don't wanna put it
to that kind of a public process.
- Gabriel, you wanna say something?
- Sure, so sorry, I have
many thoughts. (laughs)
So I am unapologetically
completely invested
in what is going to support
people's lives and dignity,
their health, safety, and humanity.
Doesn't mean that I don't
care about procedure.
I actually care a lot about procedure
and shifting procedure so that there are
conversations among affected stakeholders
and so that there's
actually some deference
to the most vulnerable people
who are most directly impacted
which is not most of the procedures
that we have legally put in place.
In terms of from strategic considerations,
I'm speaking again as an advocate here,
one of the things that we think about
in terms of what's going to best support
people's lives, dignity, health, safety
is what is going to
prevent the worst change
and produce the best change for right now
because people are in need right now
and also down the line.
And so one of the things
that we would debate
in a variety of different settings is
if we can get administrative
guidance right now,
and if that's gonna have an impact
on the people who are
in trouble right now,
then that's great, but it's
easier to change, right?
So if you have an actual regulation
that's been done through
notice-and-comment,
it takes a little bit more to change it
'cause usually you need
to do notice-and-comment
again if you wanna change it.
Although I'll leave it to other
folks to elaborate on that
if you want the elaboration.
So often we would want
the notice-and-comment
for a formal rulemaking
because if it's a good policy
it'll be a little bit
more resistant to change
under the next administration,
whether we're talking
state, local, or federal.
Doesn't mean it can't
be changed, of course,
but it's a little bit
more resistant to change.
And also, sometimes people can use things
like notice-and-comment periods.
It doesn't usually work this way,
but I mean, there is
a record of tremendous
community work to intervene
in these processes
that have done some
pretty profound things.
I mean, if you think about the sit-ins
during the 504 Rehabilitation Act
to try to get regulations
passed about what
accommodations for people
with disabilities mean.
It's a moment when you
can actually mobilize
a lot of people to try to talk about
what their actual experiences are
and try to bring attention to them.
So I think that there
are some real reasons
when it can be very helpful
to go through a more
formal rulemaking process.
I don't that's an excuse
not to take action now
to permit trans kids to continue
to be able to go to school
or for anything else, right?
And yeah, I'll just
leave it there for now.
So I think action now is great,
and also I think that
the further procedural
processes both it can
prevent some of the backlash
and it can make some of the changes
last a little bit longer.
- I think that's both
a great place to stop
and the place that we have to stop.
So I wanna thank all of you for coming.
I know you're all busy.
I want to deeply thank the panelists
for making it possible to
talk about these really
complex issues in this compelling way.
And come to the next forum.
(audience applauds)
