A recent decision by the U.S. Department of Education about how to interpret the law prohibiting sex discrimination in education has some important implications for the separation of powers, religious freedom, and the need for moderating influences on potentially contentious issues.

Background

Congress enacted landmark legislation prohibiting sex discrimination in education – Title IX – in 1972. The heart of the law provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

At the time, and over the ensuing decades, the law was understood as a means for ensuring that colleges and universities did not limit women’s opportunities in classes, financial aid, athletics, etc. In fact, the statute itself refers to “one sex” and “the other sex” and uses other language that suggests its focus on male and female opportunities.

The recent Department of Education announcement modifies this understanding. Officially called a “Notice of Interpretation,” it serves as an official declaration that the department will accept and investigate complaints that schools have discriminated against students based on sexual orientation and gender identity.

The notice explains that this new claim of authority is based on a reinterpretation of the meaning of the term “sex” in Title IX. That interpretation was borrowed from a U.S. Supreme Court decision, Bostock v. Clayton County, which interpreted a different statute in a similar way.

Separation of powers

When the U.S. Constitution was written, an important purpose of including clear separation of authority among the different branches of the federal government was to discourage arbitrary rule. By constitutional design, the branch most accountable to citizens – the legislature – would make the laws.

This concept has been threatened by the rise of administrative rulemaking, where executive branch agencies interpret congressional statutes in substantive ways; in this way the real force of the legal requirement comes from these bureaucratic decisions, rather than from a vote by elected representatives.

This can happen when the agencies reinterpret provisions in ways that are arguably at odds with what Congress intended or, increasingly, because Congress defers difficult decisions to administrative agencies to avoid accountability for potentially unpopular policies.

Religious freedom

The original Title IX statute contains a provision meant to protect the free exercise of religious schools: “This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”

The current administrative rules define control by a religious organization broadly, but that could change, as the approach to defining the term sex in the law has changed. Additionally, it is not clear how the department would handle a dispute between an advocacy organization or student and a religious school on whether a particular policy is actually inconsistent with religious tenets. In the recent decision on Catholic foster care services, the U.S. Supreme Court noted the city of Philadelphia had suggested Catholic Social Services’ decision not to place children with unmarried couples was inconsistent with Catholic teachings.

The concerns related to separation of powers thus have implications for religious freedom as well.

Need for moderating influences

The separation of powers and religious freedom implications of the department’s reinterpretation of Title IX involve broader social concerns.

By assigning lawmaking to the representative branch, the Constitution made it more likely that laws would be created in an environment of competing interests. Differences among states, constituents, political parties, and personalities of representatives would increase pressure to moderate and seek to reflect the varying interests of the nation’s people.

When the executive takes on lawmaking authority, it does so in a different context: Partisan interests of a president are likely to be an increased factor in decision-making, since the multiplicity of interests reflected in Congress are not at work.

As an example, the recognized role of the Department of Justice when it acts as a defender of federal statutes is to vigorously defend existing law (which any client expects from their attorney). So it was not surprising when the department announced its intention to defend the religious exemption in Title IX in an ongoing lawsuit. After pressure from advocacy groups, though, the department backed off that promise.

The increased role of administrative agencies in shaping legal requirements is sometimes justified as necessary to inject professional expertise into complex modern issues. That rationale is hard to credit when an agency’s policies on issues like abortion or sexuality are subject to whiplash-inducing shifts as soon as the party controlling the presidency changes.

The Constitution’s framers envisioned a solution to this problem: Congress makes decisions about policy and law, and the executive branch faithfully implements them. To overcome the divisiveness and polarization that occurs when executive decision-making places partisan agendas and power politics above all else, Congress will have to restore itself to its Constitutional role of making the law instead of abdicating that role to bureaucracies.