The Instigator
AlyssaDBryant
Pro (for)
Tied
0 Points
The Contender
bearski
Con (against)
Tied
0 Points

The 5/13/16 Dear Colleague letter of the DOJ & DOE re Student Transgender RIghts is Lawful

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Voting Style: Open with Elo Restrictions Point System: Select Winner
Started: 6/11/2016 Category: Politics
Updated: 1 year ago Status: Post Voting Period
Viewed: 622 times Debate No: 92590
Debate Rounds (4)
Comments (13)
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AlyssaDBryant

Pro

First round is only for acceptance of debate challenge. Second round is for presenting opening argument. Third Round is for rebuttal. Final and Fourth round is for concluding arguments. Please be prepared to provide links to factual and legal claims.

The referenced Dear Colleague letter can be found at http://www2.ed.gov...

This debate goes to the issue of whether this letter was an example of "federal overreach" as has been recently claimed by numerous conservative commentators. I say the action was lawful and did not overreach the authority of the DOE or DOJ.
bearski

Con

Thank you for the opportunity to debate this topic.
Debate Round No. 1
AlyssaDBryant

Pro

The May 13, 2016 Dear Colleague Letter ("DCL") by the DOJ and DOE regarding the rights of transgender students was lawful.

1.Issuance of DCLs by such agencies is commonplace.

A quick Google search reveals that DCLs are often issued. For example, they have been issued by the DOE on issues such as the appointment of a Title IX coordinator (http://www2.ed.gov...). Twenty DCLs have been issued just this year on issues related to student aid. See, http://www.ifap.ed.gov.... In 2015, twenty-two were issued on a variety of helpful topics, e.g. the undue hardship discharge of a student loan in bankruptcy. See, http://www.ifap.ed.gov.... Reviewing this DCL might be very helpful to students in a hardship situation.

2.This DCL did not purport to expand existing statutes, e.g. the Title IX of the U.S. Educational Amendments of 1972.

This guidance says what is otherwise the law - there can no expansion from a DCL, hence no overreach of existing law: "This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations." See, http://www2.ed.gov... paragraph 3.

3.Any state or school which disagrees with this DCL can either (i) disregard the DCL or (ii) seek relief in court.

The DOE and DOJ have given clear guidance as to their position as to how trans students should be treated under existing federal law. Any party with legal standing can dispute this position and, in fact, eleven states did just that by filing an action in the United States District Court of Texas. See, http://legalclips.nsba.org.... A mere statement by an agency charged with enforcing a statute like Title IX of its own interpretation of Title IX does nothing to prevent any other party from taking an opposing position. Therefore, this DCL is not an overreach (or even really a "reach") at all. This DCL merely provides information as to DOJ & DOE positions.

4.The guidance provided by this DCL was consistent with earlier positions taken by both the DOE & DOJ.

Nothing new to see here folks. Move along:

The legal basis which under girds this DCL is the position that discrimination against a transgender student because that person is transgender is discrimination "because of sex" in violation of Title IX of the U.S. Educational Amendments of 1972. In April of 2014, the DOE made this position clear and also stated that its Office of Civil Rights was accepting complaints for investigation. See, http://www2.ed.gov..., section B-2.
The DOE had taken this this position in 2012 in a Title IX investigation of the Arcadia School District which resulted in a complaint being filed in the DOE"s Office of Civil Rights. See, http://www.nclrights.org.... This was not a well kept secret.

Similarly, the EEOC and the DOJ have taken the same position in an employment context, i.e. that discrimination against a transgender person because they are transgender is discrimination "because of sex" in violation of Title VII of the Civil Rights Act of 1964. Google Macy v. Holder, and the Department of Justice v. Southeastern Oklahoma State University for examples.

(Courts have generally assessed Title IX discrimination claims under the same legal analysis as Title VII claims. Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir.1993) (Title VII is "the most appropriate analogue when defining Title IX's substantive standards"), quoting Mabry v. State Bd. of Community Colleges, 813 F.2d 311, 316 n. 6 (10th Cir.1987).)

5.The guidance provided by this DCL was consistent with an evolving body of federal law.

The only United States Circuit Court of Appeals to make a recent determination on transgender student rights is the 4th Circuit in Grim v. Gloucester County School Board. See, https://www.aclu.org.... In a recent Title VII case, Judge Robin Cauthron of the Western District Court of Oklahoma (an appointee of President George H. Bush) rejected legal arguments which would have found the opposite. That case is set for trial in October of this year. Many more examples can be provided if this becomes a disputed issue.

Note that this DCL is still lawful even if Court's ultimately disagree with the position taken by the DOE and DOJ. This DCL placed an important public issue in a position to be decided with finality in the court system. Litigation on these points was inevitable.

Similarly, it is not my burden to show that these policies are desirable to establish that this DCL is lawful. However, while we are here, please note that around 15.5 million k-12 students attend school in districts with affirming transgender policies. Chicago, New York, Los Angeles, Kansas City, even Tulsa, Oklahoma all have affirming policies which are consistent with this DCL. Kids will be kids but nothing dire has happened in any of these situations.

However, to repeat, I do not have to prove that these policies are the best possible policies for students to show that the issuance of this DCL was lawful and not any kind of federal overreach as argued by so many conservative commentators. I believe the policies are in the best interests of students but that is an issue for another debate.
bearski

Con

Pro basically gives two reasons why she believes this letter is lawful. One is such letters are frequently issued; and the second it supports a worthwhile cause.

The first is simply silly. It uses a basic fundamental of propaganda. If a lot of people are doing or in this case it' done frequently it must be a good thing. It may well be a good thing but doing it frequently does not make it so. The second point I will concur with it serving a worthwhile goal.

More importantly there are 10 counts (reasons) offered by the plaintiffs in the Texas lawsuit as to why this letter is unlawful. I will list them here.

Count 1 Did not follow proper procedure in implementation. Did so without observing as required by law notice of comment rule making period

Count 2: It is not supported by legislative intent as documented in the Congressional Record

Count 3: Infringes on the separation of powers doctrine in that the executive branch is usurping legislative powers. And it also infringes on the 10th Amendment which reserves to the states rights not enumerated to the Federal government nor prohibited elsewhere in the constitution to the states. These reserved rights include general police powers

Count 4: It infringes on the Equal Protection Clause of the 14th Amendment by imposing different requirements on different groups of persons

Count 5: It unlawfully abrogates state sovereign immunity. This can be done only if there has been Congressional findings of invidious discrimination. There have been no such findings

Counts 6 and 7: It is arbitrary and capricious in addition to being an abuse of discretion and is not in accordance with existing statutory and case law

Count 8: It violates the constitutional requirement of clear notice. Under the Spending Clause anyone accepting federal funds must be aware from the language in the Congressional authorization the requirements for accepting such funds. Any ex post interpretation which is contrary to the original intent is unlawful

Count 9: It is unlawfully and unconstitutionally coercive. The penalty both implicitly and explicitly threatened by the letter is simply too severe. The loss of federal funds will have a broad and unfairly negative impact on a broad range of children most if not all of them have little or no responsibility for discriminatory practices against transgender students.

Count 10 It was issued without the proper regulatory flexibility analysis

Debate Round No. 2
AlyssaDBryant

Pro

Thank you, Con, for joining me in this debate!

Con recasts and collapses my five points into two straw men. Con then simply repeats, verbatim, the complaint filed in the Texas lawsuit I referenced. Let"s go back to my five points.

1.Issuance of DCLs by such agencies is commonplace.
Con recasts this argument as if I said this was some kind of majority rules proposition. That was not my point. My only point is that there is nothing inherently unlawful about DCL"s per se. They are issued all the time without controversy. Con provides no authority that DCL"s are inherently unlawful. Therefore, Con must establish that something about this particular DCL is unlawful.

2.This DCL did not purport to expand existing statutes, e.g. the Title IX of the U.S. Educational Amendments of 1972.

Con drops this argument and none of the 10 allegations cited in the Texas case and reposted by Con address this fact. The DCL could not and expressly said it did not purport to change existing law. To the contrary, it provided agency interpretation of existing law.

3.Any state or school which disagrees with this DCL can either (i) disregard the DCL or (ii) seek relief in court.

This is another argument ignored by Con. In fact, Con proves this point by showing that some states are challenging DOE and DOJ positions.

4.The guidance provided by this DCL was consistent with earlier positions taken by both the DOE & DOJ.

The argument is ignored. If there is something unlawful with the DOE"s position, the DCL"s restatement of that position with more specificity is not unlawful.

5.The guidance provided by this DCL was consistent with an evolving body of federal law.

I cited to the ONLY circuit court precedent on the bathroom issue " Grim v. Gloucester. Con cites to the flimsy allegations contained the states" complaint.

Con loses at the outset by not understanding that the "counts" of a complaint are not evidence. A complaint by any party in court sets out allegations of a plaintiff. At this point in the process, no proof is provided, no evidence cited, therefore, these arguments should be rejected at the outset for want of any evidence.

As I will also show, many of these allegations were rebutted already in my argument.

Con then cites the allegations in the Texas lawsuit:

Count 1 Did not follow proper procedure in implementation. Did so without observing as required by law notice of comment rule making period.

The procedural argument the states are making invokes the Administrative Procedures Act ("APA"). " 5 U.S.C. "551. Any further discussion of federal rule making by any agency should refer to the APA and the case law interpreting the APA. Fortunately, just last year we had a SCOTUS decision on point " Perez v. Mortgage Bankers Association.

Perez explained: "The APA distinguishes between two types of rules: So-called "legislative rules" are issued through notice-and-comment rule making, see ""553(b), (c), and have the "force and effect of law," Chrysler Corp. v. Brown, 441 U. S. 281, 302"303. "Interpretive rules," by contrast, are "issued . . . to advise the public of the agency"s construction of the statutes and rules which it administers," Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99, do not require notice-and comment rule making, and "do not have the force and effect of law," ibid." See, http://www.supremecourt.gov... .

Con gives no argument as to how the DCL would create new law instead of being, as it states on its face, limited to advising the public as to how the DOE and DOJ construe laws and rules which they administer. As I argued already, in Grim v. Gloucester, the DOE and DOJ"s position re restrooms (and that was not all that was in this DCL although it gets the most attention), was affirmed by the only United States Circuit Court of Appeals to yet address the issue. Therefore, the DOE and DOJ are taking a position which is, at the very least, supported by a good faith position in existing law.

Count 2: It is not supported by legislative intent as documented in the Congressional Record

This is interesting. Actually, "sex" was added to the 1964 Civil Rights Act on Saturday, February 8, 1964, by an avid segregationist. (Note my earlier citations that Title VII case law is used to interpret Title IX). Later cases (see Ulane v. Eastern Airlines), have stated that this was a ploy to scuttle the entire bill. On this basis, if we look to mere intent of the person who proposed to amend the law to add "sex" discrimination, we would not enforce sex discrimination at all. While it is true there is no reference in the legislative debate to transgender rights, neither was their discussion of the right of men to be free from male-on-male sexual harassment. Even so, Justice Scalia found such a right in the Oncale decision he authored.

There was not discussion of sex stereotyping. Does an employer get to say that an African American can be fired because he acts "too black," i.e. his presentation is too consistent with the stereotypes of African Americans in a given place and day. Would it be sex discrimination to fire a woman who is too "macho?" SCOTUS emphatically said no in Pricewaterhouse v. Hopkins.

Words have power and we have declared in various areas that we are not going to allow sex discrimination. What that means in contexts not envisioned in 1964 (Title VII) or 1972 (Title IX), is left to the Courts for interpretation. Courts rightly often defer to the interpretation by the agency which has been charged by statute with enforcing that law.

"One of the most important principals in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable." See, https://www.law.cornell.edu...
Therefore, it is true that the DOE"s interpretation of Title IX is given deference where the law is ambiguous. Far from being unlawful, this "one of the most important principals in administrative law."

Count 3: Infringes on the separation of powers doctrine in that the executive branch is usurping legislative powers. And it also infringes on the 10th Amendment which reserves to the states rights not enumerated to the Federal government nor prohibited elsewhere in the constitution to the states. These reserved rights include general police powers.

This argument assumes that there is no legal basis for the DOE and DOJ"s interpretation. I have already explained, citing the Grim case, how this is not true. If the states are arguing that Title IX itself is unconstitutional, good luck with that argument!

Count 4: It infringes on the Equal Protection Clause of the 14th Amendment by imposing different requirements on different groups of persons.

Con does not explain how this is true. If anything, this DCL would promote consistency in the treatment of all persons by eliminating uncertainty as to how the DOE and DOJ interpret title IX.

Count 5: It unlawfully abrogates state sovereign immunity. This can be done only if there has been Congressional findings of invidious discrimination. There have been no such findings

Con fails to provide a source or justification to explain the applicability of sovereign immunity against the federal government. I will not make his argument but if he is referring to the APA, I have already explained why this is not a rule making. I can find no authority that an agency must make such a finding when it is merely providing guidance as to its own interpretation of law, particularly where that interpretation has already been accepted by the only circuit court to consider the issue.

Counts 6 and 7: It is arbitrary and capricious in addition to being an abuse of discretion and is not in accordance with existing statutory and case law

Con does not explain how this is true. I have shown you some of the case law. If Con had given any references at all, we could have had a more detailed discussion.

Count 8: It violates the constitutional requirement of clear notice. Under the Spending Clause anyone accepting federal funds must be aware from the language in the Congressional authorization the requirements for accepting such funds. Any ex post interpretation which is contrary to the original intent is unlawful.

No authority is provided. I can only assume that Con is referring to the law under Arlington Central School District Board of Educ. v. Murphy. This was an argument rejected by the 4th Circuit in Grim. Here is a link where Texas filed an unsuccessful amicus brief under the same grounds: https://www.texasattorneygeneral.gov...

Count 9: It is unlawfully and unconstitutionally coercive. The penalty both implicitly and explicitly threatened by the letter is simply too severe. The loss of federal funds will have a broad and unfairly negative impact on a broad range of children most if not all of them have little or no responsibility for discriminatory practices against transgender students.

I do not understand this allegation. The denial of federal funds where there has been a Title IX violation was the basis for providing parity to women in athletics.

Count 10 It was issued without the proper regulatory flexibility analysis

No source is provided and I am reluctant to create another straw man to attack. However, the Regulatory Flexibility Act applies where a federal agency is "adopting regulations." No regulation has been adopted.

All the DCL did is provide guidance as to its own belief as to how Title IX operates in this specific context.
bearski

Con

Pro does an overall excellent job of responding to the points I offered in my last argument. I agree with most of them and I agree with the policy being advanced by the Obama Administration. I could challenge her five points as being too generalized, inherently contradictory, and set up to end up at the same conclusion-- the DCL is lawful.. But even if successful it would be a very weak argument.

With that in mind I am going to concede the debate to Pro and will probably forfeit the final round. Pro clearly has the stronger argument and I am just not able to counter it any further

I will spend the remainder of this argument answering, clarifying, and commenting on several points in Pro's last argument. These may serve to strengthen her assertions more than they refute or weaken them.

With regard to the counts on lack of adequate notice, arbitrary and capricious etc -- these are I think rather common allegations made in administrative law cases when a regulation is being challenged. Although such challenges are rarely successful when they are it is often on these grounds. I hope I am wrong but Pro may be a bit overconfident in dismissing their relevance. I do not believe it was merely by happenstance this case was filed in Texas and not in other places where it could have been filed. Pro cites with enthusiasm the recent 4th Circuit case which at this point is limited to the case being remanded to the District Court for trial. Over the last several years the 4th Circuit once a rabidly conservative court has become more moderate and even somewhat liberal. But Texas is not located in the 4th Circuit. It is located in the 5th Circuit still a notoriously right wing court and one which in recent months has demonstrated its hostility to immigrant rights, to women's reproductive rights, as well as in other matters. It would not be surprising if they sided with Texas on this matter of transgender rights.

the 14th Amendment argument offered by opponents of transgender rights is a disingenuous one. The contention is based on several factors-- the primary one being that transgender people don't really exist except as men and women pretending to be or believing to be the opposite sex either because of a lifestyle choice, mental disorder, or some other variation of delusion or wishful thinking. Or and in addition to having some intent to commit sexual offenses. The argument essentially says the 14th Amendment equal protection clause is violated because the regulation as interpreted by the Obama Administration grants persons claiming to be transgender their choice of restroom but denies that choice to other men and women.

It is sort of like a case some years ago where a court ruled it wasn't sex discrimination for an employer to fire pregnant women because the company policy also applied to pregnant men. That is a little off the topic perhaps.

There is also the question of whether transgender people form a suspect or quasi suspect class. I do not believe gay and lesbians have achieved that status either even with the decision in the marriage equality case and other gay rights cases. Preserving that non-status goes to the plaintiffs citing the 14th Amendment in the way they do.

Since the prejudicial claims about the nature and conduct of transgender people will ultimately be destroyed as were similar claims before about gays and lesbians, African Americans, and others before-- the question will come down to Who decides? This argument contends it is up to the legislative branches and not the executive or judicial branches to advance in this case transgender rights.

Anyway those are a few thoughts as I see it. I hope you win the debate. Maybe a more skilled and knowledgeable debater with a more thorough knowledge and understanding of the law and one more honestly in disagreement with you could have done better but as it is I tried with what I had

Thank you for bringing this topic up. If you are an advocate for transgender rights best wishes toward advancing the cause.
Debate Round No. 3
AlyssaDBryant

Pro

Dear Instigator:

Thank you for your kind words and intellectual honesty. I think you are right that the administrative arguments are thrown out in most of these types of cases but, I also admit, that the 5th Circuit may be a challenge. I suspect this is SCOTUS-bound. I limited the debate to the "overreach" argument since that seemed to be the primary theme of those attacking the May 13 DCL but I think anything could happen in terms of whether the DOE, EEOC, and DOJ position is ultimately accepted by SCOTUS.

The equal protection issue is interesting. The Tenth Circuit found as recently as 2007 in Etsitty v. Utah Transit Authority that transsexuals are not a protected class under Title VII. However, they also noted:

"Scientific research may someday cause a shift in the plain meaning of the term "sex" so that it extends beyond the two starkly defined categories of male and female."

The court cited:
"Schroer v. Billington, 424 F.Supp.2d 203, 212"13 & n. 5 (D.D.C. 2006) (noting "complexities stem[ming] from real variations in how the different components of biological sexuality ... interact with each other, and in turn, with social psychological, and legal conceptions of gender");
"cf. Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (stating that the possibility that sexual identity may be biological suggests reevaluating whether transsexuals are a protected class for purposes of the Equal Protection Clause)."

There are two interesting points to be made here. First, the court seemed to want to address this issue but noted that, "At this point in time and with the record and arguments before this court, however, we conclude discrimination against a transsexual because she is a transsexual is not "discrimination because of sex."" (Emphasis added).

In other word, the lawyers at the trial court level had not provided the 10th Circuit with the record and argument to address the issue.

Second, and more to your point, the Brown case cited in Etsitty is a 10th Circuit equal protection case. In 1995, the 10th Circuit said in Brown:

"Recent research concluding that sexual identity may be biological suggests reevaluating Holloway. See Equality Found. v. City of Cincinnati, 860 F.Supp. 417, 437 (S.D.Ohio 1994) (concluding that sexual orientation is an issue beyond individual control), aff'd in part and vacated in part, 54 F.3d 261 (6th Cir.1995); R01;Dahl v. Secretary of the United States Navy, 830 F.Supp. 1319, 1324 n. 5 (E.D.Cal.1993) (collecting research suggesting that sexual identity is biological).

"However, we decline to make such an evaluation in this case because Mr. Brown's allegations are too conclusory to allow proper analysis of this legal question. We therefore follow Holloway and hold that Mr. Brown is not a member of a protected class in this case."

Therefore, both in 1995 (Brown) and 2007 (Etsitty), the 10th Circuit seemed open to the argument but the proper groundwork had not been laid at the trial court level. Perhaps this is why the first lawsuit brought by the DOJ under Title VII on behalf of a transgender American was brought in 10th Circuit. That is the SEOSU case I referenced above.

I think all of this will end up with SCOTUS and the result will largely depend on this Presidential election. Yikes.

In any event, I appreciate your taking on a difficult position and wish you well.

Allie
bearski

Con

it is important attitudes in the medical and related mental health professions continue to change and evolve as well.
Debate Round No. 4
13 comments have been posted on this debate. Showing 1 through 10 records.
Posted by bearski 1 year ago
bearski
I think the federal overreach claim has also been used by conservative opponents of the Obama Administration in environmental cases and in immigration cases. It is also at its core the old states rights argument used by segregationists a half century ago.
Posted by AlyssaDBryant 1 year ago
AlyssaDBryant
Since this was the primary talking point of several conservative writers after the 5/31 DCL, I was hoping to better understand their position. Part of advocacy is understanding the other side's argument. Debate.org seems like a great place to hone arguments for use in other segments. I am a trans advocate, the only trans board member on the local LGBT center and have probably give 25 or so talks in the last 12 months. I do not need debate.org to give a Trans 101 talk or to discuss the case law which has led us to this point on the substantive issue of whether this is "sex" discrimination under Title IX or Title VII. The anger that was conjured about this "federal overreach" mystified me and I do not want to assume I understand the other side without first making the attempt.

I admit I took the "meat on the bone" comment from your earlier comment which was probably a little silly of me. In any event, peace.
Posted by bearski 1 year ago
bearski
why did you expect to find meat there?
Posted by AlyssaDBryant 1 year ago
AlyssaDBryant
As do I. The primary theme of the regressive forces after the DCL was "federal overreach." I had hoped to see if there was any meat on that bone.
Posted by bearski 1 year ago
bearski
There are a number of avenues you could take. I understand you don't want to keep arguing the bathroom issue. When I do I try to expand it out to explain it's nothing new and put it in a historical context.
Posted by AlyssaDBryant 1 year ago
AlyssaDBryant
Yes, those are the trolls I wanted to avoid by making this a fairly narrow, even technical, debate topic. Also, there have been plenty of general discussions about transgenderism and I wanted to focus on the latest news, i.e. the 5/13/16 DCL
Posted by bearski 1 year ago
bearski
I assume by trolls you are referring to those bigots for lack of a better word who come on and spew ignorant and prejudiced crap about transgender men and especially transgender women. They use the basic same argument racist, homophobic, anti semitic and other bigots have used in the past against their targets to smear trans women as sexual predators. Unlike many other trolls who can be harmlessly entertained or ignored these people need to be confronted

If you look at it historically you can find the same claims of illicit and abnormal sexual power used against women to justify the witch hunts of the late Middle Ages and early modern period

Confront them not to change their minds, if you can fine but it is not likely. but to let others know they're wrong and their attitudes etc shouldn't be acceptable
Posted by AlyssaDBryant 1 year ago
AlyssaDBryant
Amend my last post to call you "Dear Bearksi" instead of "Dear Instigator!" I haven't been on debate.org for a while.

In any event, I appreciate the debate. I hope my last post put more meat on the bones. I did limit this to a technical point to try to keep a troll (which you absolutely are not) from jumping on more general transgender issues. There could be a debate more generally on the entire issue of the applicability of "sex discrimination" statutes or, more specifically, bathrooms. I do tire about talking continuously about bathrooms.
Posted by bearski 1 year ago
bearski
looks like I misread the time remaining
Posted by bearski 1 year ago
bearski
There is still over two hours left so that is plenty of time but it seems as if Pro started this debate for the purpose of making a statement on a rather narrow and technical aspect on the issue under debate. Despite taking the other side in the debate I basically agree with her. I hope she comes back on and gives some more meat and substance to her argument and frankly I was surprised of how superficial and weak it is so far.
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