Courts

How Process Battles Monkey-Wrench Policy

Arguments over process are over policy too.

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Arguments over process, it's sometimes said, are really arguments over policy. Two recent controversies—one national, one in Virginia—prove it. But they also prove two other things: that process still matters, and that ignoring process can impede policy.

This past Monday a federal judge temporarily halted the Obama administration's directive on accommodating transgender students in public education, at the behest of 13 states that had sued to block it.

The states argue that the administration improperly promulgated new regulations outside of the normal rule-making process, and U.S. District Court Judge Reed O'Connor said they had a good chance of prevailing on that point.

But the states made the challenge in the first place because they clearly don't like the substance of the directive.

Alabama Attorney General Luther Strange says he objects to "social experimenters in Washington" writing state policies about bathroom use. What he really means is that he objects to letting members of one biological sex use the bathrooms and locker rooms designated for use by the other biological sex, regardless of their self-identification.

Conservatives tend to resist the idea that gender can be fluid and non-binary, and have pushed back hard against it, asserting (among other things) that transgenderism is merely a mental disorder similar to anorexia.

It's a fair bet that if the Education Department had issued a directive requiring transgender students to use the bathroom that aligns with their anatomical sex, Republicans would have cheered, and let the procedural details drift away with the tide—while liberals filed motions full of procedural arguments in court.

But procedure matters either way. Handing down an edict as the Obama administration did ignores a number of valid concerns that deserve a better airing. For instance, there's a real question about the status of gender-fluid athletes. Earlier this year a transgender student won an all-state track and field award by competing against girls, and this year the Olympics accepted transgender athletes for the first time.

This opens up a big can of worms, and has the potential to do away with gender segregation in sports altogether. Transgender advocates contend that discrimination on the basis of gender identity is wrong. But the only difference between a biological male who identifies as female and a biological male who identifies as male is the gender identification.

So if we allow a biological male who identifies as female to compete against women, then we must also allow a biological male who identifies as male to compete against women, too. To do otherwise would be to discriminate between them for no other reason than their stated gender identity.

Doing away with sex segregation in sport might not be such a terrible thing. After all, we don't permit racial segregation in sports, despite the fact that certain events (such as men's track and field) tend to be dominated by one ethnicity or another. But at least a normal rule-making procedure would have allowed for thoughtful consideration of such issues.

A similar dynamic has played out in Virginia over Democrat Gov. Terry McAuliffe's efforts to restore voting and other civil rights to felons.

McAuliffe took the state by surprise when he issued a sweeping and unprecedented executive order restoring the rights of 206,000 ex-cons. It soon became apparent that the administration had not done its homework. Those benefiting from the order included numerous violent offenders who are still incarcerated and a number of sex offenders being held through indefinite civil commitment.

The administration also overreached when it claimed the ban on felon voting was the product of Jim Crow-era efforts to subjugate African-Americans. (In fact, the ban dates to 1830, four decades before African-Americans could vote, so its effect originally was limited to white males.)

To make matters worse, local registrars were caught off guard and overwhelmed with questions about how to deal with inquiries. The administration had not given them any notice of what was coming—even though it had given notice to liberal activist groups, the better to make a big political splash.

Republicans sued, arguing that McAuliffe lacked the constitutional authority to restore rights en masse—and a split decision of the Virginia Supreme Court upheld their view. It ordered registrars to revoke the voting registration of 13,000 felons who had signed up.

This has monkey-wrenched two elections in Richmond, where one felon is running for the School Board and a mayoral candidate's eligibility hangs on a single felon's petition signature. Nobody is entirely sure how to handle those cases.

McAuliffe blames all this on Republican political game-playing, and he is right to at least a certain extent: While they made a constitutional argument, they seem miffed chiefly by what they see as his effort to help his dear buddy Hillary Clinton win in November. (They might not like the idea of felons serving on juries or acting as notaries public, but they probably wouldn't have gone to war over it.)

Yet they would not have been able to bring a suit in the first place if the governor had followed his predecessors' practice of restoring rights on an individualized basis.

The other day McAuliffe announced that he had restored the rights of the 13,000 previously registered felons and will continue to work his way through the remaining 193,000. Good for him. Now he also has an opportunity to push Republican lawmakers to do what they have refused to do for many years: Put the issue to rest by passing a constitutional amendment automatically restoring voting rights to felons upon completion of a sentence.

Knowingly or not, the governor is now abiding by what has been called the first rule of American business: When all else fails, try doing it right.

This column originally appeared in the Richmond Times-Dispatch.

NEXT: Obamacare Is Stuck in a Feedback Loop of Bad Policy and Bad Politics

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  1. Alabama Attorney General Luther Strange says he objects to “social experimenters in Washington” writing state policies about bathroom use. What he really means is…

    You know, I think he might really mean he objects to social experimentation from DC? I mean, just idle speculation here, but you haven’t exactly ruled it out.

    1. Apparently Bart has been spending a lot of time with John and learning his mind-reading trick.

    2. I’m making over $15k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. Go this website and go toTech tab for more work details…Now this Website… http://goo.gl/zO9Jnm

      1. Building transgender bathrooms?

      2. And what the bot really means is that bot objects to letting members of one biological sex use the bathrooms and locker rooms designated for use by the other biological sex, regardless of their self-identification.

        Shame upon your server.

    3. I was struck by that as well. Considering the fact that the article is about “monkey wrench policy” it seems almost an obligation for a state AG to defend the State against the obviously illegitimate process employed. Not sure his personal opinion is relevant.

  2. It soon became apparent that the administration had not done its homework.

    I’m sure every one of those people was checked and double-checked as a future Democrat.

    1. Or a past Democrat, or someone who wouldn’t vote but could br registered as Democrat and have someone else file a vote in their name

  3. To repeat something I learned some time back, in Virginia the governor can restore a convicted felon’s right to vote and hold office, but only a court can restore that felon’s right to bear arms.

    I suggest that the two go together, so that if the governor wants to restore a convicted felon’s civil rights, he has to restore *all* of them – voting, officeholding, and bearing arms.

    After all, what are voting and officeholding if not the right to command other people to bear arms in your behalf?

    So we trust these new voters to make decisions about when the cops should be empowered to use violence, but they aren’t allowed the right of personal self-defense with firearms? That’s messed up.

  4. Alabama Attorney General Luther Strange

    is the son of Lena Luthor and Hugo Strange.

    1. I read that as Luther Strode and was happy at the implication of the coming ultraviolence.

  5. This is ridiculous. Of course it is the party suffering harm that is going to object.

    And the idea of a testosterone enhanced “woman” competing against biological women is just ridiculous.

    1. Yeah, the Chinese and Russian women’s Olympic weightlifting teams are just bullshit.

    2. I want to see Usain Bolt win the Women’s 100m in 2020.

  6. It is almost as if somebody thought that government processes that were slow and inefficient might encourage limited government with consent of the governed.

    But that is just crazy talk.

  7. Doing away with sex segregation in sport might not be such a terrible thing. After all, we don’t permit racial segregation in sports, despite the fact that certain events (such as men’s track and field) tend to be dominated by one ethnicity or another.

    I like you, Hinkle. I’m not saying I like you best, or anything, but you should know that I’ve always like you.

    1. Doing away with sex segregation in sport might not be such a terrible thing.

      I’d be somewhat sorry to see high-level women’s sports disappear, but if that’s the price of getting rid of Title IX, its a price I’m willing to pay.

      1. Well yeah, doing away with sex segregation in sports means doing away with women’s sports.

        1. At high levels, I think it would. Women simply can’t compete head-to-head with men. Hell, the Australian women’s soccer team practiced with a junior high boy’s team and got their asses handed to them.

          Doing away with sex segregation means there is only one competition, not two (one for men, one for women). If women have to qualify with and compete against men, the women aren’t making it very far in the competition.

          1. I like to tell a story about the US volleyball nationals, where my open men’s team was playing several years ago.

            Misty May (yes that one) was setting for a women’s open team, and needed some scrimmage help. So, a few of us men who were waiting to play later helped them out.

            2 of us. Because any more than that, and it got very very unfair for the women.

          2. For some sports, such as golf, there is no legal bar for women to compete in the men’s league. Annual Sorenstam participated in a few PGA tournaments on a sponsor exemption during the height of her career. She may have made one cut.

            1. Annika Sorenstam played in one regular PGA tournament, missing the cut. She did play in the Skins Game against Mark O’Meara, Phil Mickelson and Fred Couples, finishing second with 5 skins, according to her Wikipedia page.

          3. If you are a man who identifies as a woman, that’s too bad. You still need to compete as a man. Many many people have problems that disallow them living life the way they would like. There does not need to be special rights for transgenders (or anyone else for that matter).

      2. Sure. If one woman gets into MLB, and the price to pay is that women’s softball teams across America become extinct, this is something I’m completely fine with.

        I don’t actually think it’s going to be the sports apocalypse everyone claims will happen when the protections drop from the market, but if apocalypse is the inevitable outcome, then let’s rip that bandaid off.

    2. But one sex dominating sport goes directly against the original goals of Title IX. I am not sure women are going to accept the demolition of women’s athletic opportunities in order to satisfy Hinkle’s OCD about segregation. The knots the government will twist to try to accomplish both would be grotesque.

  8. it would be easier to have faith in government solutions to complex social problems, if they could somehow figure out an appropriate bathroom policy.

  9. Alabama Attorney General Luther Strange says he objects to “social experimenters in Washington” writing state policies about bathroom use. What he really means is that he objects to letting members of one biological sex use the bathrooms and locker rooms designated for use by the other biological sex, regardless of their self-identification.

    Magic 8-ball told you this, I suppose.

    Do they teach clairvoyance in journalism school now, or is one expected to “just do it”?

  10. Barton is diminishing the procedural protections of the APA, weak as they are, even though those protections are the only brake on rule by agency diktat.

    It doesn’t help, of course, that in this case the agency has absolutely no statutory authority whatsoever to promulgate transgender anything. But, I suppose that’s just another niggling procedural issue standing in the way of the Greatest Civil Rights Victory of Our Time. One is reminded of the line from A Man for All Seasons about facing the devil after all the laws have been cut down.

    Rest assured, though, once the agency goes through the APA motions, the lack of authority will be front and center.

    1. Rest assured, though, once the agency goes through the APA motions, the lack of authority will be front and center.

      We’ll get to that soon enough. It’s not like the administration is actually going to bother reading, much less dealing with, anything raised during Notice and Comment. If they gave a fuck, they wouldn’t have issued the policy to begin with.

      1. Back when the HIPAA rules were first proposed, my comment was that they were mostly ultra vires, that the statute had only authorized privacy rules for the electronic exchange of billing information.

        The lack of authority was waved off in a sentence in the final rules.

  11. But the only difference between a biological male who identifies as female and a biological male who identifies as male is the gender identification.

    So now that the military is good with TGs, if I tell them I identify as a female, do the female fitness standards apply?

    1. Yes, but you are officially banned from participating in sausage jodys.

    2. There us one important difference, the one who identifies as a female wants to be treated as a female, and there are cultural and institutional differences in that which are a direct consequence of the physiological difference between the sexes. Saying there is no difference is disingenuous.

    3. IIRC, you have to transition on your own time and dime, and once you’ve finished transitioning then yes. Until then, however, no.

      1. you have to transition on your own time and dime

        Unless you’re in prison, no?

      2. IIRC, you have to transition on your own time and dime,

        Nope.

        Service members with a diagnosis from a military medical provider indicating that gender
        transition is medically necessary will be provided medical care and treatment for the
        diagnosed medical condition, in the same manner as other medical care and treatment.

        http://www.defense.gov/Portals…..-Sheet.pdf

      3. IIRC, you have to transition on your own time and dime, and once you’ve finished transitioning then yes.

        What is this transition you’re talking about?

  12. But the only difference between a biological male who identifies as female Napoleon and a biological male who identifies as male himself is the gender identification male’s mental health status.

    Seriously, folks. This is a delusion. Its one that doesn’t prevent many of its sufferers from being perfectly functional, so I’m not saying they should be treated for it against their will, but elevating a delusion to a major civil right that imposes costs on others strikes me as unwise.

    If gender identity should be likened to anything in our anti-discrimination laws, it should be religion, not sex, as the former refers to a set of beliefs (like what gender you are) and not to a biological fact.

    1. Sounds good to me. If they’re going to keep insisting that sex and gender are different then we should stop treating sex like gender and vice versa.

    2. I had a friend go down that road back in the late 70’s. He was a regular joe, married, good guy. I ran into him a few times after he started wearing a dress, which not a lot of hippie chicks were doing at the time, and trying to get rid of the facial hair. He was surprised and hurt that his wife had left him, which gave me a little insight into his grasp on reality. I don’t think anybody cared which bathroom he/she used and I seriously doubt he was ever confronted on the issue because, as my wife pointed out, we were raised to be polite no matter how crazy people acted. In the end the whole thing just seemed sad to me. Haven’t seen him/her in 35 years and I hope he/she is happy. But I suspect that’s not the case.

    3. Yes. Male or female is something you *are*, trans-anything is what you *believe*. There are people who identify as particular animals. More power to them, but I am under no obligation to play along with them. Princess Fluffypaws remains a human being no matter how intensely she wants to be a cat, and a human being with a penis and testicles but no vagina or ovaries remains a man.

      Doesn’t mean that person shouldn’t be treated with dignity and respect, but I refuse to validate things that aren’t actually true just because it makes someone sad if I don’t. When you start affirming falsehoods as truth for political reasons, then there really isn’t any logical endpoint to the things you can declare true by the authority of the state. Someone (Bailey? I think) frequently mentions Lysenko here, and the notion that females can will themselves to be male just because they want to be one certainly seems to fit that category.

  13. Lesson = Bang your high-school teacher, get rich

    Why taxpayers are footing the bill for these morons love-child, i do not fully understand. Oh, wait = California. Now I understand.

    1. In asking a judge to reject the plea bargain with prosecutors in 2013, the student said, “Physically, I feel sick to my stomach thinking about the manipulation I was subjected to.”

      *HM reacts*

    2. Ya know what’s weird about that?

      She’s a convicted sex offender, and she has custody of a child. I’m surprised that’s even allowed these days.

      1. I’m surprised that’s even allowed these days.

        It is if you’re a woman. Even a female sex offender is better than a man, in the system’s opinion.

  14. I guess I’m willing to accept utilitarian arguments applied to the spending of money the government takes from the citizenry by threat of force. How many millions of dollars ought we to blow “solving” the problems of infinitesimally small groups?

    1. I know this one. Moar?

      1. Not enough capital letters

        1. capitol letters.

    2. “How many millions of dollars ought we to blow “solving” the problems of infinitesimally small groups?”
      Historically, folks opposed to LGBT rights have been more then willing to blow millions of dollars creating problems for “infinitesimally small groups”, so I think that cow already left the barn.

      That said, it takes all of fifteen minutes for a school to throw an all-hands staff meeting where they tell everyone that yes, Jane was John last year, but Jane can use the girl’s room. So if we’re pulling a “think of the money” card here, it’s literally costing more to fight this then it would be to implement this.

      1. it’s literally costing more to fight this then it would be to implement this.

        bullshit.

        unless you think passing laws like the ADA requiring the entire nation to retrofit their buildings were also “cost free”.

        Creating any specially-protected class which can then sue the fuck out of anyone for perceived transgressions isnt ever a good idea, and costs billions and billion and billions in perpetuity.

        1. Does it not enter EE’s mind that there are people who don’t fucking want this implemented at all and are using legal means to prevent more impositions of conjured rights on their lives?

          1. The idiot seems unaware we’ve already had laws passed in NYC saying, “Using the wrong pronouns” can cost a person a quarter-million $.

            of course i presume he’ll explain how “fighting that” was such a huge expense.

            1. The important thing is that it creates more jobs for lawyers.

              1. The real important thing is, it gives nut cases and meddling busybodies another opportunity to use the power of government to harass normal people.

                1. it gives nut cases and meddling busybodies lawyers another opportunity to use the power of government to harass normal drain money from people on the flimsiest of claims

                  it doesn’t require calling some people “nuts” and others “normal” to suggest that victim-classes are bad for everyone in the long run

      2. folks opposed to LGBT rights have been more then willing to blow millions of dollars creating problems for “infinitesimally small groups”,

        How much has the government spent oppressing gays in, say, the last 30 years?

        That said, I’m less concerned with what the new push for public accommodation will cost the government, than with what it will cost private parties.

      3. That said, it takes all of fifteen minutes for a school to throw an all-hands staff meeting where they tell everyone that yes, Jane was John last year, but Jane can use the girl’s room

        And who’s Jane you say? Why, Jane’s a genderqueer lesbian with a male presentation. She’s gonna look and act exactly like John did–except she’ll be showering with the other girls this year.

        Unless she decides to transition back. Because gender is fluid.

      4. it’s literally costing more to fight this then it would be to implement this.

        Yes, that’s the usual tragedy of government regulations: dispersed costs and concentrated benefits.

        The federal government has no business regulating who goes to which bathroom, period. What the cost of implementing such idiotic laws is is immaterial. And that comment applies to male/female bathroom usage just as much as to transgender bathroom usage.

  15. Doing away with sex segregation in sport might not be such a terrible thing. After all, we don’t permit racial segregation in sports, despite the fact that certain events (such as men’s track and field) tend to be dominated by one ethnicity or another.

    Let the market, you know, the people who buy tickets, decide that instead of letting bureaucrats issue diktats on the matter.

  16. If you took the fastest man in the 100 yard dash and transplanted a woman’s brain into him, would that automatically make him eligible to race against women instead? If you are unfortunate enough to be born male while for some reason thinking you are female, why is this so much more of a burden (with regard to who you get to race against) that someone born with no talent at running at all? Shouldn’t everyone have a right to a talent transplant into those who run too slow?

  17. “Conservatives tend to resist the idea that gender can be fluid and non-binary, and have pushed back hard against it, asserting (among other things) that transgenderism is merely a mental disorder similar to anorexia.”

    Until such time as medical science has progressed to the point of – somehow – actually changing a person’s sex, the Conservatives are correct, save for a vanishingly small number of true medical hermaphrodites. And maybe I’m out of touch with current psychiatric thinking, but I was under the impression that humoring a delusion was widely considered harmful. I see no reason why a male who sincerely believes he is or should be female should be treated differently from a human who sincerely believes he is, in some manner, another species or a figure from history or mythology.

    Produce a way for people to actually switch sex and my position will change. But the more I look into it, the more the idea that the medical profession takes advantage of the delusional, and mutilates them in the process confirms my low opinion of the vast majority of Doctors.

    1. Until such time as medical science has progressed to the point of – somehow – actually changing a person’s sex, the Conservatives are correct, save for a vanishingly small number of true medical hermaphrodites.

      Sex isn’t even well defined in biology. Biological sex finds its expression in terms of primary sexual characteristics, secondary sexual characteristics, chromosomes, sex hormone expression, gene activation, and brain structure. You can have any combination of male/female/intersex characteristics for those criteria alone. A significant percentage of the population deviates from the norm along at least one of those dimensions.

      1. With a tiny ercentage of exceptions, you either have one set of functioning genetalia, or the other. Attempts to deny this truth by descending into biological minutia ignore the gross facts.

        Now, I don’t necessarily want to punish the delusional. I just think that the fasion for pretending they aren’t delusional is absurd and possibly harmful to them. Ok, so you weren’t born a woman. I wasn’t born with the genes for the hight and reflexes to me a great basketball player. I cope. I don’t have the innate talent to be a successful comic book artist (I spent about a decade seriously practicing cartooning. I can make the occasional strinking single picture. I can’t do page after page of them. The talent ain’t there) I deal.

        You want to wear the other gender’s clothing? I will stand up for your right to do so. When it comes to bathrooms, go to the one you have the plumbing for.

        And stay out of the hands of the surgeons. Until further developments, the indications are they can’t really help you.

    2. Oh, no! Doctors are doing things that their patients want them to! Whatever shall we do to prevent this voluntary association?

      1. The medical businesses are selling as “gender reasignment”, proceedures that mutilate the body but do not actually result in change of gender. That’s fraud at a minimum. It also violates the what the medical establishment would like us to believe are the standards of medical ethics, i.e. “First, do no harm”.

        If the cutting had a record of satisfying its customers, I would let it slide. Suicide numbers strongly suggest that it doesn’t.

        1. I have a trans friend who had suicidal episodes ALL THE TIME (seriously, this has been a high-effort friendship) before eventually starting hormone therapy, and has noticeably improved since then.
          Anyway, you don’t seem to understand what gender is, as opposed to sex, but suffice it to say that an animal biologist does not speak of the “gender” of a specimen.

  18. This opens up a big can of worms, and has the potential to do away with gender segregation in sports altogether.

    *sitting quietly in the back, nodding*

  19. I wonder what happens when a Title IX rape defendant claims to be female.

  20. How Process Battles Monkey-Wrench Policy

    You say that as if it’s a bad thing…

  21. For instance, there’s a real question about the status of gender-fluid athletes. Earlier this year a transgender student won an all-state track and field award by competing against girls, and this year the Olympics accepted transgender athletes for the first time.

    “Women can do anything a man can do!”

    *gets pounded into the dirt by a male competitor*

    “Help, Help! I’m being oppressed!”

  22. This has monkey-wrenched two elections in Richmond, where one felon is running for the School Board…

    Oh, a felon wants to run for office? Let ’em! That’s a particularly easy campaign to smear.

  23. Blargh. I know a few trannys (trannies?) and they’re ok people. I don’t know if I’d say they’re like the most normal or sane people I know… But they’re not horrible, and they’re no more crazy than plenty of straight people I know. Their “feelings” about being the wrong sex may well be biological, just like being gay is biological. Honestly whatever the case they are still what they are biologically speaking.

    I think private businesses should set their own policies of course. One club where I go that I have met most of the trans people I know has ALWAYS had the policy that you use whatever bathroom you want. It works fine there because of the type of people that go there. Sometimes I’ve used the urinal after a dude in a dress, one of the ones I’m better friends with always uses the female restroom. It works fine.

    That said, public facilities should probably stay on the conservative side of this one. I feel like in bathrooms it’s not THAT big of a deal. It could be a little weird to explain why the man in a dress is in the women’s bathroom to your daughter, but you can just tell her it was an ugly broad until she’s older! But locker rooms… That shit can be awkward enough in school without throwing in somebody of the opposite biological sex into the mix.

    1. To me it’s just a matter of math. They’re such a small percentage I don’t understand how THEY can feel like they need the whole world to bend for them. If I had some odd thing about me that upset/weirded out a decent chunk of people, I would try to be polite and not rub it in their face. Like when I was a smoker, I was considerate about it. Why can’t they realize it’s basically the same dif? You may think you’re a woman, but if it’s going to make a bunch of people uncomfortable what kind of an asshole do you have to be to push that onto other people? It’s just inconsiderate.

      Seems like it’s just easier to let the minority bear the brunt of the “oppression” on this one. I guess. It’s weird having a “lady” in a dress in the men’s room and explaining that one to your son too I guess. Damn weird people have to make the world so complicated!

      As for sports… LOL I would LOVE to see somebody do an open all sex league for some sport just to prove a point. That would really drive home the fact that there ARE REAL gender differences. I love using the sports example when I’m talking to people about the reality that there are differences between genders, because it’s just too obvious to ignore. You get into subtleties of how our brains work and they knee jerk that it can’t be possible, despite tons of scientific literature, but they can’t ignore the sports.

      1. When you get right down to it, everybody on earth believes that the world should accommedate them. It’s just that we have, moreor less by consensus, decided that that doesn’t work. So we make compromises, and try to accommedate the most people we can.

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  25. “members of one biological sex [should be able to insist on using] the bathrooms and locker rooms designated for use by the other biological sex”

    So a person’s claimed sexual self-identification allows them to use the bathrooms and locker rooms of their choice. A policy seemingly tailor-made to discriminate against young women already struggling with and even embarrassed by sexual urges.

    How do you stop male perverts and voyeurs claiming a change in their sexual identification allows them to indulge their sexual perversions at the expense of vulnerable young women? With this policy, you don’t.

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