"DEAR COLLEAGUE" LETTERS & THE TRANSGENDER BATHROOM "GUIDANCE" REPEAL
The Trump Administration has withdrawn the Obama “guidance letter” requiring schools to allow students to use the bathroom of their choice, regardless of their sex. Predictably, this action has produced more heat than light from the administration’s critics on the left. Once again, President Trump is being accused, without real evidence, of being hostile to the GLBT community.
While as a local chapter we take no position on the merits of the guidance, or the decision to withdraw it, given the confusion and distress the media coverage has caused among many of our members over this one decision, we as Log Cabin Republicans of Houston feel obliged to set the record straight on the issues involved here.
The policy President Trump rescinded was not a law passed by Congress. Nor was it a federal regulation duly promulgated after formal hearings allowed opposing points of view to be considered. Nor was it even an executive order. It was a type of communication commonly referred to as a “Dear Colleague” letter.
Because such communications are supposedly letters of “guidance,” they not only bypass Congress, they also bypass the formal regulatory review by appropriate federal agencies that Congress has directed shall apply whenever new regulations are issued. And yet, when they carry the threat of sanctions if they are not followed, they have the effect of law. But only Congress is given the power to pass laws.
This is why legal experts were quick to point out that the president was acting outside the scope of his constitutional authority. Coincidentally, within days after the presidential bathroom policy was issued, 21 law professors from universities around the country, from Harvard to Stanford, and in between, published an open letter to the president. In this letter, they condemned his use of the “Dear Colleague” letters in various areas as short-circuiting the normal rule-making processes prescribed by our system of constitutional government.
Congress has indeed delegated rule-making to the executive branch in many areas. But when it has done so, it has provided rules that must be followed before a new regulation can be enacted. “Dear Colleague” letters are a way of avoiding the limits that the Constitution puts on the president’s executive power. Abused, they can undermine the system of checks and balances that is supposed to keep the president from acting arbitrarily and unilaterally.
Rescinding the Obama administration’s “guidance” to local schools on bathroom policies is not necessarily acting against the interests of the GLBT community, especially if it helps restore our constitutional system of checks and balances, preventing abuse from future presidents.
Returning the issue to the states does not automatically mean that transgendered persons will not be treated with the sympathy and respect that they deserve. State school systems are still free to evolve policies appropriate to meet local conditions, and appropriately passed federal laws and regulations are still an option, as opposed to a policy arbitrarily handed down by two or three individuals in Washington.
We should not confuse respect for the Constitution with discrimination against transgendered persons just because that respect calls for a slower process, and there is no evidence President Trump has a bias against the transgendered. During last year’s campaign for president, Mr. Trump made a point of telling transgendered personality Caitlyn Jenner that she could use whichever bathroom she chose at any one of his hotels. Ms. Jenner took him up on the offer, and found that Mr. Trump was as good as his word.
It is worth nothing that when the Trump administration announced it would not rescind Obama’s GLBT non-discrimination executive order, the news media ignored it, and liberal-progressive groups instead sent fundraiser emails focusing on a ‘possible,’ ‘maybe,’ ‘could be,’ ‘secret,’ executive order aimed at promoting unfair discrimination against GLBT. So we know that no matter what Trump does, we can count on his critics to deliberately misrepresent his words and actions.
President Trump is by any standard the most GLBT-friendly Republican ever to occupy the nation’s highest office, and among the two most gay and trans-friendly presidents of any party this country has ever had. As Log Cabin Republicans of Houston, we insist that President Trump, as well as all political leaders of either side, be treated fairly and with reason on this issue, and on all issues involving GLBT and non-GLBT Americans alike.