by Michael Dorf
On Wednesday, Texas and nine other states (as well as various localities and officials) sued the United States, seeking to block implementation of the policy regarding access to restrooms by transgender students set forth in the May 13 "Dear Colleague" letter from the Justice Department and the Department of Education. The lawsuit raises a number of procedural questions regarding jurisdiction and the Administrative Procedure Act--procedural questions of the sort that I often blog about. Indeed, readers may recall that I addressed only a technical procedural question a couple of weeks ago, in my post on the dueling lawsuits by the U.S. and North Carolina over the latter's "bathroom law."
For today, I want to bracket the interesting procedural questions raised by this latest Texas v. U.S. case --not to be confused with U.S. v. Texas, the immigration case now before the SCOTUS. The two cases are similar. In both, Texas argues that the Obama administration is attempting to accomplish by non-rulemaking agency action something that can only be accomplished either by legislation or by notice-and-comment rulemaking. Moreover, although broad constitutional objections to the exercise of executive power are asserted in both cases, close inspection shows that at bottom, each case is really about statutory interpretation. I might have more to say about the immigration case if and when the Court decides it later this Term. For now, I want to focus on the statutory interpretation issue in what I'll call The Bathroom Case.
The core of the plaintiffs' argument goes like this: When Title IX was enacted and amended, nobody thought that its prohibition on sex discrimination included either a prohibition on transgender discrimination or an obligation to permit transgender students to use sex-segregated restrooms designated for persons of the sex that corresponds to their gender identity rather than their at-birth biological sex. Indeed, its proponents provided assurances that restrooms segregated by biological sex are consistent with the statute. Thus, Title IX does not contain any obligation regarding transgender students today, and the "Dear Colleague" letter is accordingly ultra vires.
My goal here is not to try to resolve the case, which would involve many considerations I'm putting aside. In addition to the procedural issues noted above, there is a question of whether the federal government's interpretation of Title IX is entitled to Chevron deference. If it is, then the fact that the interpretation is a change from prior policy would not doom the federal government's position. The Chevron case itself, after all, upheld a changed interpretation of a statute.
But whether we are asking if the DOJ/DOE interpretation of Title IX is "reasonable" (as a court would ask in Step 2 of Chevron) or whether that interpretation is correct (as a court would ask if no deference is due), it's worth noting what appears to be an assumption embedded in the plaintiffs' core argument in The Bathroom Case: If Title IX didn't previously mean (or allow as a reasonable interpretation) that transgender discrimination or exclusion is sex discrimination or exclusion, then it can't mean that now, because at no time did Congress amend Title IX to include transgender discrimination. Put differently, the plaintiffs' argument depends on a view of statutory interpretation as static.
In an important article and book of the same name--Dynamic Statutory Interpretation--Professor Eskridge argued that traditional approaches to statutory interpretation aimed to uncover the original intention of the legislature, but that just as many people reject originalism in constitutional interpretation, so we should recognize that statutory interpretation also changes over time.
Since Eskridge first advanced the idea of DSI almost 30 years ago, the terms of the debate in both statutory interpretation and constitutional interpretation have changed somewhat. In the former, it is now conventional to distinguish among: (1) intentionalism; (2) purposivism; and (3) textualism.
Intentionalism in statutory interpretation aims to uncover and apply the intentions of the statute writers. Intentionalism founders on the problems--noted long before Eskridge wrote DSI--that even where the legislature anticipated a question, as a multi-member body it lacked any single intent with respect to that question, and that many of the hard questions in statutory interpretation are hard precisely because the legislature did not anticipate them. For these and other reasons--including skepticism about the reliability of legislative history--there are not many intentionalists around these days.
Purposivism, which is often associated with the Legal Process School of Hart & Sacks, does not aim to recover the actual subjective intentions of particular legislators or the legislature as a whole. Rather, it asks what purposes (which generally exist at a higher level of generality than intentions) reasonable legislators would have been pursuing in writing the statute the legislature enacted, and then construes statutory ambiguity in the way most likely to advance those purposes.
Textualism begins with skepticism about the legibility of legislative intent and the provenance of imputed legislative purpose. As to the latter, textualists warn that legislation is typically a compromise among people pursuing multiple conflicting purposes, so that any effort to infer and apply a purpose beyond what appears on the face of the legislation will likely simply impose the policy views of the judges.
Needless to say, these are almost comically abbreviated summaries, but they will suffice for now to make the point I wish to make: Intentionalism but neither purposivism nor textualism functions in the way that the plaintiffs' core argument in The Bathroom Case assumes that statutory interpretation works.
In making the foregoing statement, I am not saying that the plaintiffs will necessarily lose. What I am saying is that under neither purposivism nor textualism is a proposed reading of a statute ruled out simply because it would have surprised (or even angered) the lawmaker. To quote Justice Scalia in textualist mode in a sexual harassment case, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Likewise, if the most reasonable purpose to attribute to the Congress that wrote and amended Title IX was to protect people against sex-role stereotyping and we now realize (even though the drafters and amenders of Title IX didn't realize) that requiring transgender individuals to use restrooms that don't match their gender identity is sex-role stereotyping, then Title IX should be read to forbid trans discrimination and exclusion.
Thus, the plaintiffs' core argument in The Bathroom Case makes an assumption that is inconsistent with two of the three leading approaches to statutory interpretation, and specifically the two approaches that are dominant in the courts.
Readers might be wondering whether I am saying that textualism and purposivism are dynamic, whereas intentionalism is static. Yes and no. Textualism is a family of theories rather than a single theory but for the most part textualists in statutory and constitutional interpretation believe that the meaning (i.e., semantic content) of a term does not change, but as readers know from debates about constitutional cases, the application can change. If it turns out that the meaning of "sex discrimination" is "practices that reinforce sex stereotypes" then we can recognize today that transgender discrimination is sex discrimination even though the enactors of Title IX would have disagreed with the specific application.
And again, likewise for purposivism. Purposivists tend not to talk much about whether the purpose of a statute is fixed at the time of enactment, but even if it is, just as the semantic meaning of the text can lead to results that the drafters wouldn't have anticipated or agreed with, so the objective reasonable purpose of the statute they enacted can turn out to have implications they didn't desire or expect. Both textualism and purposivism can be dynamic with respect to specific applications and expectations.
The, the plaintiffs' core argument in The Bathroom Case should fail. Perhaps there are other grounds on which they can win, but the fact (if it is a fact) that the application of Title IX to forbid trans discrimination or exclusion would have surprised the Congress that enacted or most recently amended Title IX is not dispositive.