Haven’t finished reading yet, but I already wanted to say THANK YOU!!! This really helps a non-lawyer like me feel like I understand how to communicate clearly.
Forreal thanks for all you do. (And Elizabeth too).
Thanks Katherine. I don't know why I find it so confusing, but I still don't really get it. Can this part be copied into a comment in the analysis section, or are these aimed at the reader to consider for inclusion in other words?:
Failure to define newly introduced concepts:
“Gender identity” is proposed with no definition (§106.10). This is both vague and overbroad. In the absence of a definition for “gender identity,” we must assume that new subsection §106.31(a)(2) was designed to permit self-identification on the basis of sex.
The new legal standard, “de minimis harm,” is undefined by the proposed regulations and therefore unreasonably subjective.
New subsection §106.31(a)(2) creates a novel legal hierarchy within the umbrella concept of sex by allowing “gender identity” to override legally permissible differentiation on the basis of sex. None of the other proposed inclusions to subsection §106.10 are given dominance to override sex-based differentiation as currently allowed by the regulations:
Sex stereotypes and sex characteristics are not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation;
Sexual orientation is not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation;
Pregnancy or related conditions is not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation.
“Gender identity” must not be given special status to override sex for the purpose of sex-based differentiation as permitted by other subsections.
The second sentence of §106.31(a)(2) is pre-emptive fact-finding that exceeds the Department of Education’s rule-making authority. It is “arbitrary and capricious” rule-making that would fail the “hard look” judicial review because:
It fails to consider or give any weight to precedent supporting a right to single-sex classification as permitted by other subsections, and that single-sex privacy is an important legal interest in many contexts.
It fails to consider “less restrictive, yet easily administered” regulatory alternatives such as single user restrooms, “third spaces,” or other reasonable accommodations for people whose gender identity is inconsistent with their biological sex.
Haven’t finished reading yet, but I already wanted to say THANK YOU!!! This really helps a non-lawyer like me feel like I understand how to communicate clearly.
Forreal thanks for all you do. (And Elizabeth too).
So glad you found it helpful! Thanks for letting us know.
This is really helpful! Grateful to both Elizabeth Hungerford and yourself for laying it out so clearly.
Thank you for this. I still find it quite complicated to understand, but will have a go.
Good for you! I hope I didn't make it sound too hard; it really isn't.
Thanks Katherine. I don't know why I find it so confusing, but I still don't really get it. Can this part be copied into a comment in the analysis section, or are these aimed at the reader to consider for inclusion in other words?:
Failure to define newly introduced concepts:
“Gender identity” is proposed with no definition (§106.10). This is both vague and overbroad. In the absence of a definition for “gender identity,” we must assume that new subsection §106.31(a)(2) was designed to permit self-identification on the basis of sex.
The new legal standard, “de minimis harm,” is undefined by the proposed regulations and therefore unreasonably subjective.
New subsection §106.31(a)(2) creates a novel legal hierarchy within the umbrella concept of sex by allowing “gender identity” to override legally permissible differentiation on the basis of sex. None of the other proposed inclusions to subsection §106.10 are given dominance to override sex-based differentiation as currently allowed by the regulations:
Sex stereotypes and sex characteristics are not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation;
Sexual orientation is not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation;
Pregnancy or related conditions is not “consistent” or “inconsistent” with sex for the purpose of permissible sex-based differentiation.
“Gender identity” must not be given special status to override sex for the purpose of sex-based differentiation as permitted by other subsections.
The second sentence of §106.31(a)(2) is pre-emptive fact-finding that exceeds the Department of Education’s rule-making authority. It is “arbitrary and capricious” rule-making that would fail the “hard look” judicial review because:
It fails to consider or give any weight to precedent supporting a right to single-sex classification as permitted by other subsections, and that single-sex privacy is an important legal interest in many contexts.
It fails to consider “less restrictive, yet easily administered” regulatory alternatives such as single user restrooms, “third spaces,” or other reasonable accommodations for people whose gender identity is inconsistent with their biological sex.