Jonathan H. Adler has an intriguing post today at WaPo's Volokh Conspiracy. He argues that ED* should have gone through a rule change rather than issuing guidance on transgender access in public school. Adler argues that the outcome in Texas v. United States (Department of Education) might have been different. Adler further argues that “sex” is sufficiently ambiguous to support ED's conclusions. I encourage you to read Adler's piece in full.
I am not sure that I agree with Adler with respect to the legal outcome. The rule making process involves publishing the proposed rule in the Federal Register with a call for comment. The comments would have been awful and the same Christians would have sought the same preliminary injunction to prevent the application of the rule. I think that the same Texas judge would have reached the same conclusion.
I agree with Adler that ED mishandled this. In my opinion ED should have issued a model policy. Then they could have funded some case studies which, I suspect, would have demolished the Christian arguments in opposition when ED subsequently went the rule making route.
We must remember that the so-called “bathroom wars” are all about gender non-conforming children in public schools (adults already use facilities of their choice). ED had the best of intentions but I am afraid that they created more stress on fragile kids. Adler's ambiguity argument is a good one and ED's guidance is correct. It is legally defensible, or at least it should be. At issue is how they get there. They were clumsy in my opinion. ED has too many PhDs and not enough people who know how to get stuff done.
* “ED” is the correct abbreviation for the Department of Education. The oft-used “DOE” abbreviates the Department of Energy. I know, I can be anal and pedantic at times.