Tennessee Attorney General Slatery’s Assessment of HB2414 Is Flawed
The people of Tennessee are tired of having their public policies being dictated to them by the various branches of the federal government, and they sure don’t want the state surrendering without a fight to the Obama administration on whether boys can choose to use a girl’s bathroom or locker room.
—David Fowler, President, Family Action Council of Tennessee—
North Carolina will never put a price tag on the value of our children. They are precious and priceless.
—North Carolina Lieutenant Governor Dan Forest—
HB2414 is a common-sense bathroom bill currently before the Tennessee House of Representatives stating that in Tennessee’s public schools, the sex indicated on a student’s birth certificate designates the restroom the student will use. The companion bill in the Tennessee Senate is SB2387. A recently-passed law in North Carolina carries a similar provision for NC public schools and other public buildings but gives private businesses latitude to set their own policies.
The Tennessee proposal has generated a great deal of opposition from those who say it discriminates against transgendered students. An individual is transgendered when he/she identifies as a member of the sex opposite the one his/her body indicates. Transgendered individuals in the United States number around 700,000—0.3 percent of the adult population. Even though HB2114 relates directly to students, the number of transgendered students still would be extremely, extremely small when contrasted to the overall student population. Accommodations certainly can be made for these students that (1) address their needs while (2) protecting the privacy rights of the majority. These arrangements may not represent the first choice of those who are transgendered, but why should members of the tiniest of minorities be allowed have bathroom access that violates the privacy rights of everyone else, especially when their access also opens the doors of women’s and girls’ restrooms to predators?
One of the questions raised about HB2414 is this: Would it violate Title IX rules and result in a revocation of federal funding? In other words, would it cost the state federal education money because it has been deemed discriminatory on the basis of sex? While the Obama administration has sought to make this case, their arguments, to date, have not prevailed in court. Two court cases are instructive for is at this point.
Although Gavin Grimm was born a female, she identifies as a male. She calls herself “Grimm.” In the fall of 2014, she was a student at Virginia’s Gloucester High School. With the permission of school officials, Grimm used the boys’ restroom at her school for seven weeks. The Gloucester County School Board intervened in December, however, and, with a 6 to 1 vote, determined that use of school restrooms would be limited to members of “the corresponding biological genders.” The adopted policy also stated that “students with gender identity issues shall be provided an alternative appropriate private facility.”
The ACLU sued in federal court on behalf of Grimm. In the case, the US Justice Department filed a “statement of interest,” and in it argued that Title IX guidelines dictate that schools must allow transgender students to use the restroom corresponding to the sex with which he or she identifies. Even so,
on July 27, 2015, U.S. District Judge Robert G. Doumar ruled that the School Board’s policy does not violate Title IX because Title IX permits schools to maintain separate restrooms for different sexes. As a result, Judge Doumar dismissed this portion of Grimm’s lawsuit. “Prosecutors cannot use Title IX, a policy that bars a school from receiving federal funding if it discriminates based on sex, in their arguments” stated Judge Doumar.
A thorough summary of the case and its ruling can be found here.
A similar ruling in another transgender case also came down in 2015. Seamus Johnston, an undergraduate student at the University of Pittsburgh at Johnstown, Pennsylvania, was a woman identifying as a man. For a while she used the men’s restroom and no one formally objected, but when she enrolled in a weight training class and began to use the men’s locker room, the university discouraged her from doing so. Johnston was told she could use the unisex facility that referees often used, but she ignored the offer and continued her practice of using the men’s locker room. She sued after she was charged with “exhibiting disorderly, lewd or indecent behavior” and disobeying the school’s instructions to avoid using the men’s bathroom and locker room facilities.
In his ruling, “Federal Judge Kim R. Gibson dismissed Johnston’s suit, saying that his transgender status was not covered by either the Constitution’s equal-protection clause or Title IX of the Education Amendments of 1972, which bars sex discrimination by institutions receiving federal funds.”
In the aftermath of the establishment of North Carolina’s new law, the governor’s office released a question and answer guide titled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren’t saying about common-sense privacy law.” Here is question 11 from that guide, along with the answer.
11. Will this bill threaten federal funding for public schools under Title IX?
Answer: No, according to a federal court which has looked at a similar issue.
These court rulings and North Carolina’s reliance on at least one of them to describe the validity of its new law provide important background information that enlightens us about the debate surrounding Tennessee HB2414. Tennessee’s Attorney General, Herbert H. Slatery, III, was asked to evaluate the bill’s legality. He make his findings public on Monday, April 11, 2016. His report says, in part, that the Department of Education [DOE] “interprets Title IX to require that transgender students be given access to restrooms and locker rooms consistent with their ‘gender identity’ instead of their anatomical gender.…There may be valid legal arguments against DOE’s interpretation, but there is no settled precedent to provide guidance as to how a court may ultimately rule…” (emphasis added).
What?!
With all due respect to Attorney General Slatery, this is, at very best, extremely misleading. At worst it is an outright lie (my words alone). I’m not a lawyer, but I don’t have to be one, and neither do you, to see how misleading this is. Keep in mind that we know Attorney General Slatery’s statement is deceptive because we reviewed two court cases and their rulings, all of which are pertinent. Slatery didn’t mention either case in his report.
There’s more. Making the points we’ve already made and then expounding on them, Family Action Council of Tennessee President David Fowler—who, by the way, is a lawyer—enlightens us further. Here is Fowler’s response to the report, in its entirety.
Attorney General Slatery’s opinion regarding the risk to the state of losing Title IX funding if House Bill 2414 passes puts forth a carefully worded legal position that only the trained lawyer can decode to deconstruct the fear of the federal government it engenders.
It essentially regurgitates legal arguments made by the Obama administration that were flatly and unequivocally rejected by the only two courts to actually rule on them. For some inexplicable reason, the attorney general does not even discuss these two cases! A first-year law student would get in trouble for writing a brief that ignored relevant persuasive authority as if it did not exist.
In the face of these two decisions, it is, therefore, more than a bit disingenuous for the attorney general to say, “There is no settled precedent to provide guidance as to how a court may ultimately rule.”
People need to know that these words are legal “code language” for “the U.S. Supreme Court has not ruled,” but that does not mean that there is no legal precedent in support of House Bill 2414. The two cases the attorney general failed even to discuss are persuasive precedent[s] the state can use to support House Bill 2414, made more persuasive by the strong language the courts used to condemn the Obama administration’s arguments.
People need to know that the words “no settled precedent” are legal “code language” for “the U.S. Supreme Court has not ruled,” but that does not mean that there is no legal precedent in support of House Bill 2414.
Moreover, the attorney generals for South Carolina, West Virginia, Arizona, and Mississippi have submitted friend of the court briefs in support of the decision from Virginia upholding a law like House Bill 2414.
That Tennessee’s attorney general didn’t even mention these favorable legal decisions and the opinion of his colleagues from other states that support the position in House Bill 2414 is a great disservice to the members of the Legislature and the public.
The misleading nature of these omissions is compounded by the fact that the attorney general instead cites settlement agreements, not court decisions, entered into with the U.S. Department of Education. A settlement agreement only means that the school districts decided not to litigate the clear meaning of the word “sex” in Title IX and just go along with what the Obama administration wanted. Settlement agreements have no persuasive value as a matter of law, unlike the court decisions that have actually ruled in favor of sex-designated bathrooms.
Settlement agreements have no persuasive value as a matter of law, unlike the court decisions that have actually ruled in favor of sex-designated bathrooms.
Thankfully, the attorney general did mention that, by law, no money can be withheld from a state until the state loses its legal arguments, and then only if it doesn’t come into compliance with that ruling within 30 days. By law, no money can be withheld during this process, and no money can be withheld retroactively.
In other words, contrary to the general impression the opinion tends to create, legislators need to understand that there is little risk that the state will lose any Title IX money so long as it complies with whatever the U.S. Supreme Court might someday say the word “sex” means. No one needs to run around like their pants are on fire as if there is some immediate, real threat to Tennessee losing Title IX funds.
No one needs to run around like their pants are on fire as if there is some immediate, real threat to Tennessee losing Title IX funds.
But the bottom line is that Tennessee cannot be held hostage by what the Supreme Court might possibly say at some point about the meaning of the word “sex” when the law, as it exists right now, is clearly in support of House Bill 2414.
The law, as it exists right now, is clearly in support of House Bill 2414.
The people of Tennessee are tired of having their public policies being dictated to them by the various branches of the federal government, and they sure don’t want the state surrendering without a fight to the Obama administration on whether boys can choose to use a girl’s bathroom or locker room.
Please share this information with your friends so that they are not mislead by how the press may characterize the attorney general’s opinion.
Read the press release version that’s on our website here.
Sincerely, David Fowler, President, Family Action Council of Tennessee
As of this writing, HB2414 and SB2387 are making their way through various committees at the Tennessee Legislature. If this proposed legislation fails, it will likely fail primarily because of the misleading, disingenuous opinion of Attorney General Slatery regarding the House version of the bill, HB2414. Governor Haslam would certainly bear responsibility as well, because he “has raised concerns [the bill] could endanger federal education funding and says that he wants to leave the issue to local school districts to decide.” Make no mistake: if the state leaves the issue to local school districts, those who desire to limit restroom access to students based on biology will be left twisting in the wind against an almost omnipotent ACLU. In abandoning these school districts, the state also will be abandoning the students in them, as well as their parents. This ought not to be occurring in Tennessee!
For the record, I want to say I stand with David Fowler and others who are fighting valiantly to pass and see Governor Haslam sign HB2414/SB2387 into law. I will do everything I can to hold responsible those leaders in Tennessee who are all too willing to turn a deaf ear to parents with moral concerns about students’ privacy rights and a deaf ear to the needs of those students themselves.
B. Nathaniel Sullivan
Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.
Update on the Virginia case: The Daily Signal: What the Supreme Court’s Ruling Means for Transgender Bathrooms in Schools, 8/4/16
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