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Department of Education Legal Office for Civil Rights Title IX

Department of Education Made a Mockery of APA Law to Fast-Track Lethal Transgender Policy

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Rebecca Hain: 513-479-3335


Department of Education Made a Mockery of APA Law to Fast-Track Lethal Transgender Policy

WASHINGTON / October 18, 2023 – During his presidential campaign, Joe Biden promised a “quick end” to the Trump Administration’s Title IX rule (1). From the first day of the Biden Administration, Suzanne Goldberg took over the helm at the Department of Education’s Office for Civil Rights (OCR). Goldberg served in that capacity until November 17, 2021, when Catherine Lhamon took over as the new Assistant Secretary for Education.

Little did members of the American public suspect that they were about to witness a flagrant abuse of the federal law known as the Administrative Procedure Act (APA). (2) The law requires federal agencies to publish an advance version of any proposed regulation, so persons are able to express their views on the proposed Rule (3).

On June 22, 2021, without advance warning or notice, the OCR issued a new Title IX Rule (4). The regulation warned schools that OCR would “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities.” The new policy took effect on the same day.

The new Rule represented a violation of all three APA requirements:

  1. No prior notice.
  2. No opportunity for public review and comment.
  3. No agency response to public comments, since no comments had been solicited.

In response, on August 30, 2021 the Attorneys General from 20 states — AL, AK, AZ, AR, GA, ID, IN, KS, KY, LA, MS, MO, MT, NE, OH, OK, SC, SD, TN, and WV — brought a 14-count lawsuit against the DOE, alleging the Title IX Rule was procedurally and substantively unlawful under the Administrative Procedure Act (5).  Nearly one year later, on July 15, 2022, the District Court of Tennessee issued a Temporary Injunction against the directive (6). But the Temporary Injunction only applies to the 20 states that had filed the lawsuit.

But the damage had been done. Educators across the country had been warned of the dire consequences of not enforcing the new transgender policy. By recent count, 10.7 million students are now attending schools with policies stating personnel can or should keep a student’s transgender status hidden from parents (7).

Now, about 300,000 American youth ages 13-17 identify as transgender, representing a doubling of their numbers in the past five years (8). And 18% of LGBTQ youth attempted suicide in the past year (9).

Encouraging hundreds of thousands of children and youth to transition to a different sex represents a radical medical experiment. In the words of ethicist Ryan Anderson, “Doctors are conducting a giant experiment that does not come close to the ethical standards demanded in other areas of medicine.” (10)

In short, OCR leaders Suzanne Goldberg and Catherine Lhamon simply ignored the Administrative Procedure Act in order to bow to Joe Biden’s campaign promise. The abuses were so calculated, flagrant, and contrary to the public interest that Suzanne Goldberg and Catherine Lhamon must now resign their positions at the U.S. Department of Education.

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