Oklahoma Commissioner of Health, Dr. Lance Frye, resigned Friday afternoon, just a day after Governor Kevin Stitt lambasted the agency upon learning it had agreed to issue a birth certificate designating the applicant's gender as non-binary, rather than male or female. The governor also directed harsh rhetoric at the Oklahoma Court of Criminal Appeals after it ruled, following U.S. Supreme Court precedent, that Congress has never disestablished the reservation of the Quapaw Nation. The decision made the Quapaw Nation the latest tribal nation in Oklahoma to have its reservation judicially confirmed.
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Dick Pryor: This is Capitol Insider, your weekly look inside Oklahoma politics, policy and government. I'm Dick Pryor with eCapitol news director Shawn Ashley. Shawn, the last week has seen a fascinating debate developing within the halls of the state capitol over separation of powers. Two legal matters have brought this issue to a head - a decision by the Oklahoma Court of Criminal Appeals finding that the Quapaw reservation has never been disestablished by Congress, and a settlement agreement in a federal lawsuit that has caused the State Department of Health to recognize non-binary gendered people on birth certificates. Let's take them one at a time. First, the reaction to the Court of Criminal Appeals decision in State of Oklahoma v. Lawhorn.
Shawn Ashley: Governor Kevin Stitt was not at all happy about this decision, which was based on the U.S. Supreme Court's ruling in the McGirt case that we recently discussed with Governor Stitt’s special counsel Ryan Leonard and Stephen Greetham, counsel for the Chickasaw Nation. Stitt said the Supreme Court's McGirt ruling continues to tear Oklahoma apart. He also said Oklahoma is literally being torn into pieces, and the governor argued Oklahoma is being gobbled up piece by piece. This cannot stand, he said. It's probably the most harsh rhetoric I've heard him use to describe the decisions.
Dick Pryor: The other matter involved a settlement agreement in a federal lawsuit between the State Department of Health and a former Oklahoma resident seeking a new birth certificate with an option for non-binary gender designation, basically another box to check in addition to male or female. The governor's office harshly condemned what they called a “rogue court settlement.” What happened here and what's been the reaction?
Shawn Ashley: The State Department of Health, represented by then Attorney General Mike Hunter's office, agreed to a settlement in May to a lawsuit that challenged the department's policy preventing an individual from being identified as non-binary on their birth certificate. Now this agreement allows that to take place, and at least one birth certificate with that designation has now been issued. Stitt said, “there's no such thing as nonbinary sex, and I wholeheartedly condemn the purported court settlement that was entered into by rogue activists who acted without receiving proper approval or oversight.” And the governor vowed to take action to reverse it. House Speaker Charles McCall and Speaker Pro Tem Terry O'Donnell said the Health Department and Attorney General's Office failed to follow a state law that requires settlements that substantially impact the operation of a state agency to be submitted to legislative leaders for review and approval.
McCall and O'Donnell urged Stitt to take action to address the situation and Senate President Pro Tem Greg Treat called it an “egregious example of executive overreach that should be corrected as soon as possible.”
Dick Pryor: And, when they say executive overreach who are they talking about?
Shawn Ashley: Well, in this case, they're talking about the leadership at the State Department of Health. As you may recall, in 2018, a law was passed that eliminated the State Board of Health as a decision-making body and put all that authority in the hands of the Commissioner of Health. In this case, Dr. Lance Frye, Governor Stitt’s appointee.
Dick Pryor: Shawn, these cases, taken together, have prompted a clash of ideas among elected officials about separation of powers between the executive, legislative and judicial branches.
Shawn Ashley: That's right. Now, in American federal government we were all taught the legislative branch writes the law, the executive branch implements the law, and the judicial branch interprets the law. In the case of the reservation land, Congress made laws establishing the various reservations and never repealed those laws, which the U.S. Supreme Court and Court of Criminal Appeals have affirmed. But Stitt and Attorney General John O'Connor have said explicitly the court got it wrong, and in more than 30 filings before the U.S. Supreme Court, they're asking it to either clarify or reverse that interpretation.
In the Health Department case, agency leaders exercised their statutory authority to come to an agreement on an issue where the law is currently silent. Oklahoma state law does not specify the different genders by which someone is identified on their birth certificate. Both the governor and legislative leaders say the agency exceeded its authority in entering that agreement, and McCall and O'Donnell point out that the Health Department, an executive branch agency, may not have properly implemented the law that requires settlements to be presented to the Legislature for review. It's all very convoluted and very confusing,
Dick Pryor: And, if your head is spinning at this point, you're not alone. Thanks, Shawn.
Shawn Ashley: You're very welcome.
Dick Pryor: And that's Capitol Insider. Email your questions to news@kgou.org or contact us on Twitter @kgounews and @ecapitol. You can also find us online at kgou.org and ecapitol.net. Until next time with Shawn Ashley, I'm Dick Pryor.
