On Thursday, March 20 – at the very hour the North Carolina House gathers to debate the “qualifications” of Thomas Wright, the N.C. Rules Review Commission will hold a meeting where the commissioners may feel required to approve new rules passed by the Public Health Commission, making “Comprehensive Sexual Education” the expected standard for one small program and putting into precedent language that couldn’t make it through the legislature.

The trouble is no one knows what “Comprehensive Sexual Education” means.

On Thursday, March 20, the North Carolina’s Rules Review Commission (RRC) will consider a proposed rule change already passed and forwarded to them by the Public Health Commission.

If approved, North Carolina’s model statutory policy, setting abstinence before marriage as the standard to be taught in public school sex ed curriculums, will no longer be the only guiding standard, as expressed by the legislature, to inform all other agencies in state government.

There will be separate and new rule for the Teen Pregnancy Prevention Initiative (TPPI), because the Public Health Commission and the Department of Health and Human Services have decided programs wanting to qualify must prove they have on their agenda a way to create “a plan to provide comprehensive sexuality education, including complete and medically accurate information about contraceptive methods including abstinence to all participants” The change is opposite from existing state policies, and it begs the question of just what the limits might be on “Comprehensive Sexual Education.”

Abstinence is included as a required method of contraception for TPPI programs, to provide “comprehensive sexual education” which will become the standard to be met for these programs to qualify for participation in TPPI, and it would eliminate “abstinence before marriage” as a basic standard for the few TPPI organizations that run their programs this way.

Not all of North Carolina’s boards and commissions have rule making authority, but many of them have the authority or a requirement to set up rules to implement programs. Many do meet to set up or change rules, and many are required to have those rules or changes approved by the Rules and Review Commission.

At a regular monthly meeting in January, the RRC rejected wide ranging rules changes passed by the State Personnel Commission adding language to existing rules requiring non-discrimination to include, “sexual orientation” among “policies and programs” to rules that “shall be administered and implemented in a non-discriminatory manner by all state agencies and universities.” The proposed change also defined “Sexual orientation.” It “shall mean actual or perceived heterosexuality, homosexuality, or bisexuality, or a person’s gender-related identity or expression.”

House Republican Leader Paul Stam and his Senate counterpart Phil Berger objected to the proposed changes only within the “Standards of Review” applicable to the laws regulating what the Rules Review Commission can and cannot do, and he rightly pointed out that the proposed changes had recently, and repeatedly, in the past been rejected by the General Assembly.

“Under the Executive Budget Act (G.S. §143C-6-5) a rejected appropriation or purpose cannot be subsequently approved by an agency through the promulgation of a new rule or a budget transfer.” Stam wrote, citing the, “North Carolina Court of Appeals has also ruled that substantive policy changes cannot be put into effect through agency rules changes – (Whittington v. North Carolina Dept. of Human Resources, 100 N.C.App. 603, 398 S.E.2d 40, (N.C.App., Nov. 20, 1990) (NO. 8910SC405)).”

Stam also wrote, “This rule change would be new and original policy, already considered and rejected by the General Assembly. The definition of “sexual orientation” is subjective and adds a classification appearing nowhere in our General Statutes.”

“The State Personnel Commission no where has this authority,” Stam wrote, and the “proposed change includes language considered during the immediate past regular Session of the 2007 General Assembly and was rejected. Similar changes have been considered by the General Assembly biennium after biennium, for many years, and were also rejected.

“Such an addition to State Personnel Rules,” he continued, “would almost certainly alter the hiring practices of the state and create a “chilling effect” upon any refusal to hire an applicant who simply mentions his or her own perceived “sexual orientation.” Personnel directors may eventually feel required to hire those who are otherwise less qualified in order to spare state resources in lawsuits.

“This policy,” he continued, “can be addressed only by action by the General Assembly.”

In the North Carolina Register, the proposed changes in Equal Employment Opportunity policy for state personnel were justified because they were “currently included in most university EEO plans and some agency EEO plans.”

“But these plans have no statutory authority either,” Stam wrote the RRC.

In Through the Back Door

An effort is unquestionably underway and led by activists throughout the United States to redefine “gender” in law as being no longer a choice of one of two categories (“male or female), but to define the concept as a “continuum,” which includes not just “heterosexuality” but “homosexuality, gay, lesbian, bisexual and Transgendered,” but any subjective self-expression of anything and everything inbetween and beyond.”

Governor Jon Corzine (D-NJ) recently signed into a law similar legislation that defines “gender” as specified throughout state law as “gender expression,” especially with regard to laws designed to prevent discrimination.

There have also been recent efforts in the North Carolina General Assembly to include either these once-considered “deviant” categories of behavior as ”gender” and adding them to categories of victims against whom it would be illegal to engage in schoolyard bullying.

An amendment offered to this “anti-bullying bill,” one that would have removed the “reasons” in favor of simply making bullying illegal, was rejected by the Democratic majority in the House before the bill was sent to the Senate where an innocuous and reasonably-sounding bill might be taken up again when the legislature returns for its next regular session in May.

Using “anti-bullying” bills, or popularly named bills as a way of getting “gender-identity,” and a “continuum of gender” concept into into state law has an obvious motive. Once such ideas are recognized, even indirectly, in one area of law, it will be hard for a court to deny consistent enforcement of laws in every other area of law.

Turning down an amendment to disregard why bullying takes place, to concentrate on keeping it from happening for any reason seems clear proof the anti-bullying bill was not really about bullying to begin with.

And the effort is cropping up, to create any kind of precedent, in state agency rules promulgation and at the universities, where one might expect the effort has had some success.

The University of North Carolina at Chapel Hill Law School recently added a question to its application which asks if the applicant is, or ever has been, “self-identified” as “gay, lesbian, bisexual or Transgendered?”

When asked why, the Applications Committee insisted the question does not affect the applicant’s admission chances, though they admit the applicant is given no indication answering the question is optional. They insist the question is on the application only “to communicate a welcoming atmosphere” to applicants, and the answers (presumably to that question alone) are not kept in permanent records or released “outside the admissions office.”

But in the promulgation of state agency rules this week, the North Carolina Rules Review Commission will consider whether requiring “comprehensive sexual education,” in one partially federally funded program to stop “second adolescent pregnancies,” should be the primary qualification for private programs applying for funds to operate in the state.

The same state law cited by Stam in his objection to the rule change offered by State Personnel, he believes, applies to this latest rule change proposed by the Public Health Commission. But that case with regard to the TPPI program regulations, before Rules Review commissioners this week, may be a harder case to prove.

“More than a decade ago,” he wrote, objecting to the proposed TPPI qualification changes, “the General Assembly passed landmark legislation that set “abstinence until marriage” as the expected standard to be taught in sex education curriculum throughout North Carolina. Federal lawmakers subsequently used North Carolina’s legislation as a model for the Title V grant programs. Any proposed change in this statewide policy is clearly the responsibility and prerogative of the General Assembly.”

Citing the state’s Executive Budget Act again, and precedence he earlier argued against the State Personnel Commission’s proposal in January, he wrote of the proposal of a change to TPPI qualifications, “I believe this is a bad idea. More importantly for the Commission to consider, the will of the General Assembly to continue funding for abstinence-based programs was clearly and recently expressed during consideration of our current budget.”

Nevertheless, the Public Health Commission was required by the law that created the TPPI program in North Carolina, to create rules for its implementation, and the “statewide policy” cited by Stam and setting “abstinence until marriage as the expected standard in public school curriculum” applies specifically to the public schools, restricted to that area alone, say proponents of the change, and not a “public health issue” in an initiative where the Department of Health and Human Services was more or less ordered to create rules “to make the (TPPI) effective.”

Proponents of a change to “abstinence” into simply just another contraceptive method and to emphasize “comprehensive sexual education” as the expected qualification argue, against evidence to the contrary, that “abstinence doesn’t work.” And you can expect them to continue.

Chief among the proponents of the changeover to “Comprehensive Sexual Education” in the legislature and in state agency commissions is the American Civil Liberties Union, who’s representatives have appeared at public hearings and legislative committee meetings throughout, sometimes alone, to argue this cause.

How delivery of “Comprehensive Sexual Education” crosses over into a traditional vigilance in support of Civil Rights is difficult to ponder.

On behalf of the North Carolina Family Policy Council, staff attorney Tami Fitzgerald again joins Stam in making a formal objection to a rules change not in accord with state law, and, again, without objecting to the substance of the changes as policy, but by using the “Standards of Review” that govern the activity of the Rules Review Commission.

Her best argument, it would seem, is with a basic language problem that never came up, for example, when Democratic legislators tried and failed to pass House Bill 879, “Modify Sex Ed Program,” when the General Assembly was in session last year. That bill would also have required “Comprehensive Sexual Education” be the new expected standard in public school curriculum.

“The rule is unclear and ambiguous,” Fitzgerald insists, and “the rule proposed by the PHC does not define what is meant by “comprehensive sexuality education.”

Because no legal definition exists for such a concept, it could mean nothing or, perhaps more importantly, everything. It is, after all, “comprehensive,” and that would seem to indicate it lacks nothing whatsoever that might be a part of “the continuum of gender expression.”

But why anyone would want to teach sadomasochism or foot fetishes, or any other practice that someone, or some group, might one day insist be included in the Gender Continuum to young women who dropped out of high school and might need counseling to prevent a second pregnancy is a little difficult to comprehend, at least for the moment.

Should the Rules Review Commission decide it just knows what proponents mean by “Comprehensive Sexual Education,” and then, on Thursday, decides to pass the rule change proposed and already approved by the Public Health Commission then all that will stop something entirely new from gaining a foothold in an admittedly remote area of law would be North Carolinians, who would have until 5 PM on the first working day after the March 20 RRC meeting to request “legislative review” of the rules change.

Ten citizens are necessary to make such a request effective, and they must write or fax (not Email) the Rules Review Commissioners directly, making such a specific request and use the following “Magic Words:

"I hereby object to the approval of Proposed Rule 10A NCAC 43A.0808 by the North Carolina Rules Review Commission, submitted to them for review by the North Carolina Public health Commission, subject to GS §150B - 21.3"

The following business day after the March 20 Rules Review Commission meeting is Good Friday, March 21, 2008, a state Holiday, and I am informed by their legal counsel for this issue, Bobby Brown, that such only ten such individual objections would automatically send the question to the legislature, in an election year. They will have until 5 PM EDT Monday, March 24, 2008 to fax or mail such objections for this legislative review of a positive decision – that is, if the Rules Review Commission feels they must approve of this improper proposal that seems clearly out of their jurisdiction.

 

ADDENDUM:

Microsoft Word file copy of the proposed Rule Change

Microsoft Word file copy of a list of the Members of the NC Rules Review Commission

Microsoft Word file copy of letter objecting to the proposed Rule Change by NC House Minority Leader Paul Stam

Microsoft Word file copy of letter objecting to the proposed Rule Change by Tami Fitzgerald
of the Family Policy Council

 

The person to fax your letter to is:

 
Bobby Brown, Co-Counsel
Rules Review Commission
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714

Joel Raupe joelraupe@gmail.com is all of the full-time minority staff for the North Carolina House of Representatives in Raleigh, NC. He Blogs at "Lunar Networks," "Things to Come" and "North State Roads," among others.