​Utah’s Department of Corrections (UDOC), the news recently reported, is being sued by the federal government. The U.S. Justice Department (DOJ) took this step because it says Utah did not adequately accommodate a prisoner experiencing gender dysphoria. Utah, not surprisingly, disagrees.

The DOJ has taken issue with Utah’s responses to requests by an inmate in March invoking the Americans with Disabilities Act. The UDOC responded at the time that it had “taken steps on our own, and as a state, to address the needs of inmates while maintaining the highest safety standards. We fundamentally disagree with the DOJ on key issues, and are disappointed with their approach.”

The DOJ’s demands were far-reaching: According to the Deseret News, “the Justice Department had outlined remedial measures including revising policies, giving federal officials access to files and written status reports about how the Utah Department of Corrections was implementing the changes. The letter also stated that the Utah Department of Corrections needed to train its employees.”

How is it possible that Utah could (as alleged by the DOJ) be so unaware of its obligations under federal law that it needs dramatic oversight or a court order to ensure compliance?

Answering this question requires understanding a source of legal regulation that is not well understood.

Take the DOJ’s formal complaint with the court. It charges the state with violating the requirements of (1) the federal Americans with Disabilities Act (ADA) passed by Congress, and (2) regulations created by the DOJ for enforcing that act. Neither of these sources of law contain any clear direction. The ADA says that “gender identity disorders not resulting from physical impairments” are considered disabilities under the law. There have been different judicial interpretations of this provision, but none are binding in Utah.

So, what is left as guidance in Utah? Only the DOJ’s understanding of the law’s requirements.

Agency guidance – whether informal, as in this case, or as expressed in documents – often strongly affects how laws are enforced. Though Congress makes the laws, agencies have been allowed to create formal rules, through a process laid out  by Congress, to enact regulations for enforcing Congress’ laws.

Many times, however, an agency would like to influence those affected by its regulations to adopt approaches to complying with the law that are arguably not addressed by, or possibly even at odds with, formal legal documents. In these cases, the agency can assert its preferred approach in lawsuits or issue “guidance documents” such as “interpretive memos, policy statements, circulars, memoranda, bulletins, and advisories.”

For example, the Department of Labor has used guidance to designate eligibility for overtime pay; the DOJ has directed state courts as to how they should impose fees; and the Department of Education laid out a complex process for handling sexual misconduct charges on college campuses.

Although nominally such guidance is not legally binding, there are strong incentives for states, business, schools and private citizens to comply. At the very least, they could be subjected to complaints, investigations and even lawsuits. Given that those who are regulated have ongoing relationships with the regulators, the potential for undue pressure is significant.

This approach raises a serious legal concern. Given that Congress has created an Administrative Procedures Act for establishing legal regulations that involves the potential for public notice and input, informal guidance could be an attempt to circumvent those legal requirements.

More importantly, agency pressure to conform to legal interpretations – interpretations that are untethered from the text of statutes enacted by the representative body designated as the lawmaker by the Constitution – strikes at the heart of our constitutional order. Federal and state lawmakers, and even the courts, should resist this trend.