How Process Battles Monkey-Wrench Policy

Arguments over process are over policy too.


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.