In its letter urging the Court to resolve Gloucester County v. GG on the merits, the ACLU notes that even though the “Dear Colleague” letter has been withdrawn, the Department of Education’s website still hosts “several additional guidance documents explaining that transgender students are protected by Title IX and should generally be treated consistently with their gender identity.”
2 The Department of Education has also not withdrawn several additional guidance documents explaining that transgender students are protected by Title IX and should generally be treated consistently with their gender identity. See e.g., OCR, Questions & Answers on Title IX and Sexual Violence (Apr. 29, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation); OCR, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf (“Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”).
We have seen this argument before. In an ill-fated attempt to stop the removal of a DACA recipient, an all-start team of lawyers actually cited a Department of Homeland Security FAQ document as proof that their client indeed had lawful presence–even though Secretary Napolitano’s 2012 Memorandum made no reference to “lawful presence.”
A sole FAQ by itself cannot be the source of legal authority. In a different case, a federal court ruled that the CMS could not rely on an FAQ on their blog (FAQ 33) as the basis to support its modification of the method used for calculating hospital-specific supplemental Medicaid payment limits. The court found that because FAQ 33 was the “sole authority” for the government’s decision, it must be set aside as unlawful.
In any event, I suspect the two cited FAQs will now be promptly deleted as they are inconsistent with the agency’s latest position.
As Petitioner notes, the fact that these informal documents can be posted and withdrawn with the click of a mouse is further reason not to afford them Auer deference.
The fact that a new administration could unilaterally rescind the Ferg-Cadima letter underscores why it should not have received “controlling” deference in the first place.