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Dear Colleague’s Letter of the Law

Societal attitudes and mores can and do change dramatically over time, but (aside from Humpty Dumpty) the meaning of commonly understood words does not. Slavery, existing at the Founding, was abolished following the Civil War through the 13th and 14th amendments to the Constitution. Suffrage, which many states could and did restrict to white men (and literate property owners at that), was eventually extended to blacks and women through the 15th and 19th amendments. Traditional gender-role distinctions that were sacrosanct enough to defeat ratification of the Equal Rights Amendment in the 1970s are now being altered by legislation—including the once-inconceivable notion of women serving in combat roles and women registering for the draft.

Even the judicial legerdemain culminating in the recognition of same-sex marriage in Obergefell was a result of an elaborate kabuki dance that took decades (beginning with Romer v. Evans in 1996 and becoming explicit with Lawrence v. Texas in 2003).

The word “sex,” however, used in civil rights statutes enacted during the 1960s and 1970s, still means what it has always meant: the biological status of being male or female. By mendaciously insisting otherwise, with its recent transgender bathroom edicts, the Obama administration has demonstrated a shocking disregard for the plain meaning of language, and an insolent indifference to congressional drafting. Nearly half the states, in three separate lawsuits, are challenging the Obama administration’s specious ultimatum to the nation’s public schools: comply, or forfeit federal funding.

Obama’s Departments of Justice and Education are asserting an interpretation of Title IX of the Education Amendments of 1972 that requires school districts receiving federal funds to allow biological males who self-identify as females to use facilities reserved for females (not just bathrooms but also locker rooms and showers), and vice versa, on the grounds that enforcing sex-segregated facilities constitutes discrimination on the basis of sex.

The DOJ and DOE contend that the word “sex” includes “gender identity” (so, for example, a male who “identifies” as female must be treated as a female), and that, as applied to so-called transgenders (those who identify as the opposite sex), sex-segregated facilities are “discriminatory.” As the state of Texas and 12 other states argue persuasively in a pending federal court lawsuit, the DOJ’s and DOE’s position is utterly baseless—bordering on frivolous. The states seek a preliminary injunction to prevent the Obama administration from enforcing the nonsensical mandate, which was not even promulgated as a formal regulation. These executive departments are attempting to transform American society via a form letter (!) they claim has the status of a “significant guidance,” in administrative law parlance.

The contention is so preposterous that one questions whether it is made in good faith. When Congress enacted Title VII of the Civil Rights Act of 1964, employers were forbidden to discriminate on the basis of enumerated characteristics, including “sex.” Neither “sexual orientation” nor “gender identity” were mentioned. (Indeed, in 1964, the concept of “transgender” wasn’t even on the legal radar screen; the term “gender identity” wasn’t mentioned in a law review article dealing with Title VII or Title IX until the 1980s.)

Eight years later, Congress passed Title IX, which prohibited discrimination on the basis of “sex” in federally funded education programs and activities. Title IX expressly allows sex-segregated dormitories and sports teams. Senator Birch Bayh (D-Ind.), one of Title IX’s sponsors, declared on the Senate floor during debate that “We are not requiring that . . . the men’s locker room be [sexually] desegregated.”[1] The initial Title IX regulations expressly permitted single-sex restrooms, locker rooms, and shower facilities.

The pleadings and briefs filed by Texas and the other 12 states convincingly demonstrate that there was a contemporary consensus, when Title IX was enacted, that the law would not require any alteration of separate restrooms for males and females. Commonsense considerations of privacy and modesty were accepted by legislators, regulators, and legal scholars.

Ironically, dating back to Louis Brandeis’s path-breaking 1890 article in the Harvard Law Review, “The Right to Privacy,” Progressives used to treat privacy as an important right. Even Ruth Bader Ginsburg, then a professor at Columbia Law School, attempted to debunk opposition to the pending Equal Rights Amendment (which declared that “equality of rights under the law shall not be denied or abridged … on account of sex”) by opining in the Washington Post that “separate places to disrobe, sleep, perform personal bodily functions are permitted, in some cases required, by regard for individual privacy.”

Now, apparently, ideological fads override students’ privacy rights.

The meaning of the term “sex” has never changed, but the Left’s political agenda has grown increasingly aggressive and intrusive in its effort to compel acceptance of a miniscule percentage of the population which claims to be transgender (approximately 0.3 percent), sacrificing the overwhelming (99.7 percent) majority’s privacy, safety, and associational rights in the process.

On numerous occasions since Title IX was passed in 1972, liberals have endeavored to extend the coverage of federal civil rights laws beyond protection of racial/ethnic minorities and women to “sexual orientation” and “gender identity” by proposing language expressly embracing those categories. In 2013 and 2015, legislation was proposed to amend Title IX itself to expand coverage to include “gender identity.”

Those efforts—unsuccessful in the case of Title VII and Title IX—unmistakably recognize that the word “sex” does not include “sexual orientation” or “gender identity.” Nevertheless, with its recent executive edicts, the Obama DOJ brushes aside decades of congressional deliberation and academic commentary by radically reinterpreting—to the point of redefining—the word “sex.” (Under President Obama, the EEOC, Department of Education, and even OSHA have adopted—also by executive edict—the same position regarding statutes they enforce.)

Incredibly, even though the May 13, 2016 “Dear Colleague” letter sent jointly by the Departments of Justice and Education states that “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX,” the same letter permits covered schools “to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport.”

It’s hard to see how such inconsistency can be maintained. If the administration’s culture warriors sincerely believed that “gender identity” was the same as “sex,” they would not tolerate sex-segregation, even in sports. The exception seems transparently calculated to placate the supporters of girls’ and women’s sports (which Title IX has done much to promote).

In Texas v. United States, pending before Judge Reed O’Connor in the Northern District of Texas, a coalition of 13 states accuses the Obama administration of rewriting federal law “by administrative fiat.” The plaintiffs allege that the agencies and officials named as defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Defendants cannot foist these radical changes on the nation.

Laws enacted by Congress through deliberate and democratic processes cannot unilaterally be disregarded or cavalierly rewritten by the executive branch. President Obama’s ludicrous insistence that “sex” means “gender identity” is, unfortunately, typical of his contempt for the Constitution’s system of checks and balances. Executive overreach is Obama’s signature strategy, and—unless stopped—will be his administration’s enduring legacy.

In this instance, he has encountered significant resistance. The legal battle over the Obama administration’s transgender edicts is now being waged on multiple fronts. In April, a Fourth Circuit panel (loaded with two Obama appointees) upheld the rewriting of Title IX through what Ed Whelan (in National Review) called a “bureaucratic diktat.” Litigation is now pending in North Carolina, Texas, and (in a case recently filed on behalf of 10 states) Nebraska. Texas’ motion for a preliminary injunction will likely be heard sometime in August. Stay tuned.

[1] 117 Cong. Rec. 30407 (1971).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 26, 2016 at 08:50:36 am

Mark Pulliam writes "traditional gender roles that were sacrosanct enough to defeat the Equal Rights Amendment in the 1970s are now being altered by legislation. . ." This strikes me as assuming something that needs to be proven. It may very well be that Pulliam is correct, and that the causality runs from government to culture--so cultural change may be the result of central government action. But it strikes me as just as possible that cultural change may result from some other cause (or more likely, causes) and government merely acts to align itself with the change.

This matters, because the rest of the essay, which focuses on the meaning of "sex," implies that government action is illegitimately assaulting the sensibilities of most Americans. Perhaps so, but that is not how I suspect most liberals would see it. If liberals are a bunch of malicious, disingenuous, dissembling, lying liars, then of course how they purport to see it does not matter. If, on the other hand, they are mostly honest, thoughtful, decent people, of the same basic kind as are we, then how they see it matters a lot.

I don't see the liberal camp dealing well at all with the problem of majority tyranny. But to put the statement that way is to assume that liberals are correct, and that on the issue of gender identity, their preferred policies really do align with the preferences of the majority.

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Kevin R. Hardwick
on July 26, 2016 at 10:45:55 am

The underlying issue in Mark Pulliam's essay and Kevin Hardwick's comments is actually the uses made of the functions and mechanisms of government as means to the ends and objectives of motivated human individuals.

"Government actions" are not mechanically autonomous. Real people, with real motivations, obtain the use of governmental mechanisms to generate those actions.

The true motivations may often be cloaked as "protection of individual rights," when the actual objectives are to create political appeal for the construction or preservation of constituencies providing political power (for the various advantages it may offer).

The semantic disruptions (and distortions) may be nothing more than the techniques or weapons employed in order to use the mechanisms of government; even at the expense of distorting its functions.

In the case at hand, there is a very, very small percentage of the population that may be identified as requiring some form of "protection," within the larger society. It is widely recognized that their actual individual needs can be provided for without disruptions to the broader social norms. However, the **real** motivations of some to use the mechanisms of government to disrupt those broader social norms, for whatever ultimate objectives, is the real issue.

Some may want to effect these disruptions simply to show that they can. It is one way to confirm the validity of their existence. We have to live with that and find ways to contend with it.

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R Richard Schweitzer
on July 26, 2016 at 11:01:25 am

Mr. Schweitzer,

You make a very astute observation and valid assertion. I quite agree!

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Paul Binotto
on July 26, 2016 at 13:15:07 pm

Professor Pulliam, your heartfelt concerns and review of regression in US law at the hands of the Obama administrative state is wonderful, yet strategically selective. In particular are the introductions of African slavery and suffrage to segue to “sex,” omitting two key issues: personal posterity (children, grand-children, and beyond) and the indisputable facts of civic morality.

You may or may not be aware that I suggest to this forum that opinion-based ethics, such as either Christian ethics or Blackstone, must give way to physics-based ethics, where “physics” means energy, mass and space-time from which everything on Earth emerges; and “civic” refers to ineluctable human connections because the persons live in the same time in the same place. Word usage is not “humpty-dumpty” when the writer, even an interested chemical engineer, clarifies the usage.

Incorporated into the preamble to the constitution for the USA is a people’s tacit instruction to the federal government to establish and promote civic morality. A write “a people” rather than the usual “the people” to distinguish persons who understand, trust, and collaborate to achieve the goals stated in the preamble. I think the people are divided 65:35, following the number of states’ delegates who signed the preamble in 1787. However, the 65% cannot find integrity (both wholeness and unassailability), because they are separated by religion and Blackstone-based law.

Consider African slavery, which, with progress could prove a boon to the USA’s constitutional republic, but has yet to establish the evidence. Slavery was an institution in the Code of Hammurabi, 3800 years ago. The physics of slavery—chains, whips, brutality, and rape—were plain to everyone. When Emperor Constantine ordered Roman priests to canonize a Christian Bible, he did not censor books that seem to condone slavery. An institution of the Christian god is intended to help both slave and master. In the fifteenth century, papal bulls instituted the doctrine of discovery with enslavement of natives and granted each Portugal and Spain monopolies on African slave trade to specific parts of the world. Luther did not object to slavery and Holland, France, and especially England helped create the massive Atlantic slave trade, placing the “produce” of the evil in colonies, including the thirteen English colonies on the Eastern seaboard. With a slave-state ration of 8:5, the 1787 draft constitution specified an end date for slave trade but upheld slavery. By 1861, the slave states ratio had inverted to 15:19, so white Christian church of military power with as much help as black church (est. 1758) could give overcame white church of erroneous opinion. Today, a portion of black church tacitly asserts that the Christian god is black and indeed condones slavery, but white slavery will emerge. This belief is evident in my hometown, Baton Rouge, LA, whetted by fiery speech from outsiders. Thomas Paine wrote a scathing letter against African slavery in America in 1775, and he indicts Christian participants. It is past time for the USA to reform from religious morality to civic morality.

From Ralph Waldo Emerson’s “Divinity School Address,” 1838, I get the message that, unlike the lesser animals, a human has the personal ability to perfect his or her self. Emerson references Jesus’ teaching. (It should be true for a nation, too.) It seems to me the key to perfection is fidelity to physics, self, family, friends, neighbors, the people, and the universe, collectively yet respectively. Since both biology and psychology emerge from physics, the person who is perfecting himself or herself has the power to decide that his or her biology does not match the psychology and, placing more importance on the psychology, practice it. Until the physics of this debate is settled, no person has the prerogative to impose on a person a psychology he or she rejects merely to match his or her biology. According to the collective fidelities, as single person who decides to change gender despite sex, should not be morally discouraged. However, if the person has created obligations, such as appreciative bonding with a spouse, he or she should neither compete with nor divorce the spouse. Instead, he or she should seek help from a civic practitioner (now known as “social worker” and also “minister”). In its role to establish and promote civic morality, both a civic people and the government would hold the person who insists on gender-change responsible for all civic provisions.

Touching on same-sex marriage, conservative lawyers who advised Congress to enact DOMA, citing the unconstitutional Judeo-Christian tradition, melted an iceberg of protection of personal posterity. The LGBT demographic report you cited claims approximately 3.8 % participation. Thus, 96% of children to date emerge as adults who choose heterosexuality. Humans tend to be influenced by both family morality and collective morality, so the LGBT demographic may increase with familiarity. Plainly, humans are much more inventive in whetting and satisfying sexual appetites than are the lower animals. However, obsession with appetites detracts from the fidelities needed for personal perfection and positive influence on civic morality. By an exclusive experience, I recommend monogamy for life, but the practice is not widespread and may be declining. See https://en.wikipedia.org/wiki/Monogamy#Frequency_of_monogamy_in_humans . These trends threaten the child. First, in same-sex families, the child is estranged from at least one provider of his or her genetic heritage. Second, same-sex families do not provide heterosexual role modeling. Third, there is no genetic immorality if a child mates with the non-genetic parental partner. Lastly, the appreciation and fidelity to grandchildren and beyond gets diluted without heterosexual monogamy for life. These issues derive from the indisputable facts of reality rather than religious opinion, and are thus defensible if not unassailable. Were I around to examine the effects of the Obama license against liberty, these variables and life-span would be of interest.

As always, I write to interest willing participants in this forum in collaborating for reform from opinion-based morality, such as religious morality or Supreme-court morality, to civic morality. The goal is a civic culture wherein most people collaborate for broadly based civic safety and security (BBCSS). The expected consequence is real-no-harm (RNH) private liberty with civic morality. In RNH private liberty, there is no “pride” in personal practices, which are civically moral and therefore not subjects for civic approval. RNH private liberty differs from the traditional “personal liberty” in that beyond BBCSS, the individual is not coerced to regard the common good. I stand on the propriety of citizenship and urge professional lawyers to collaborate by filling in the gaps my legal naiveté’ leaves. The “progressive” administrative state must be contained, constrained, and reversed.

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Phil Beaver
on July 26, 2016 at 14:17:35 pm

Phil, please go away.

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Scott Amorian
on July 26, 2016 at 14:38:05 pm

Apparently there is a dearth of *willing* participants.

Many of us here at LLB have feeling comparable to those who is past centuries were "shanghaied" or as the Brits lovingly referred to it: *impressed*

Try as WE might, we are somehow not "impressed" with these generous solicitations.

Your ship has lifted anchor - Please set sail!

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gabe
on July 26, 2016 at 14:46:05 pm

Why is, exactly, that Obama has shown so much contempt for the Constitution and overreach, and yet he hasn't been impeached?

Perhaps our instrument of impeachment doesn't work correctly and it could use a little improvement.

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Scott Amorian
on July 26, 2016 at 15:17:44 pm

Richard:

You are *exactly* right in this.

Government domains are populated by those "liberals" that Kevin alludes to (mistakenly to my mind, at least with respect to this particular segment of liberals) who have a rather keen and pronounced desire to change or obliterate every last vestige of traditional sensibilities.

Change, as Kevin asserts, does not necessarily originate with government, or even the above referenced highly motivated liberals. Rather it is to be found at first instance in those same academic "commentaries" that Mark alludes to above. While it may be true that 30+ years ago the preponderance of such commentary supported traditional interpretations of *sex*, this clearly may no longer be the case. consider all the rubbish emanating from the sanctified heights of academia today - look to all the *studies* issued by these same academics that decry traditional values and laud the new sexuality and personal gender choice. These are in effect policy prescriptions by those who are motivated to a) convince the world of the rightness of their views, b) continue their assault on all things Western / American, c) demonstrate to the world that they are the "Elite / Elect" of old protestant theology days, d) an opportunity to "publish" not perish and e) continue to draw support from the otherwise disaffected while again diminishing those cultural values they deem anachronistic, wrongheaded and the province of the *unwashed*.

AND then there are thier students who are bombarded with this silliness. These go on to accept the *teachings* of the great minds to be found at a modern University, having already been prepared in secondary (and now primary) educational systems.
While it may be argued that at the higher levels AND with the higher minds of the modern day *philosophes* there was a minimum of substance to their arguments, when adopted by the 2nd and 3rd tier minds populating the primary, secondary and undergraduate educational systems, the minimum of logic, fact and historical underpinnings that were, at first instance, present in the argument are now completely lost on the secondary and tertiary adoptees / proponents of the new *truths*.

Yet, this new truth, this new policy prescription has now become widespread.
Do not fear: There are votes to be had and certain political opportunists will seize upon this as just another vote getting mechanism.
In power, and to cement the allegiance of the newly *enlightened*, Government ACTORS will work to advance this new right / prescription via both the Legislature and the Judiciary. Failing that Executive Action will be taken and the minions, a preponderance of whom are 'devotees" of the new prescription, will issue all manner of edicts, regulations or simply extra-legal *guidance letters. The aim of course is to demonstrate that they are worthy of continued electoral support AND as a means of imposing their view on the population at large, most of whom are ignorant bitter clingers from parts unknown.

So no, government is not the originator of cultural change. It is simply the "quick acting" cement that solidifies the newly adopted (imposed) norm.

Gee, I did not mention the Party that deploys this strategy / mechanism most frequently and effectively.

Care to take a bet on it?

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gabe
on July 26, 2016 at 15:19:57 pm

Better still, perhaps, our elected "nobility" could use some bloody backbone.
Then again, a free press would help as well.

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gabe
on July 26, 2016 at 16:32:35 pm

Thoughtful essay. But when Pulliam begins in this manner….

Societal attitudes and mores can and do change dramatically over time, but (aside from Humpty Dumpty) the meaning of commonly understood words does not.

…he stumbles upon a pet peeve of mine.

A word may change its form, to any extent, without change of meaning; it may take on an entirely new meaning without change of form. As a matter of fact, the words are few or none which have not done both . . . ."

William Dwight Whitney, The Life and Growth of Language (1875) at 49.

The seventeenth-century grammarian, Alexander Gil, at one time schoolmaster to young John Milton, was convinced that English was going to Hell in a handcart. Being precluded, for obvious reasons, from blaming the Yanks, the trade unions, the comprehensive schools or the BBC, he blamed Geoffrey Chaucer, then comfortably in his grave for more than two hundred years. Chaucer, it seems, had by his practice promoted the vicious habit of using French words.

Walter Nash, An Uncommon Tongue: The Uses and Resources of English 185-86 (1992).

Every publication in America today includes pages that would appear, to the purist of forty years ago, unbuttoned gibberish. Not that they are; they simply show that you can't hold the language of one generation up as a model for the next. It's not that you mustn't. You can't.

Bergen Evans, "But What's a Dictionary For?" in The Ways of Language 77, 79 (Raymond J. Pflug ed., 1967).

For reasons which a psychologist could most likely explain, people treasure the notion of a pure variety of whatever language they speak. Nobody is ever able to tell just what this purity consists of, what characteristics make it pure, but most people are sure that it exists somewhere.

Graham Wilson, Foreword, A Linguistics Reader xviii (Graham Wilson ed., 1967)

Of all forms of change, linguistic change is one of the hardest to accept. A country is propped up by its language. Disturbance of the system by the loss of a meaning (for example, the traditional sense of the word 'gay') or by the threatened disappearance of a useful distinction (for example, 'disinterested' taking over the territory of 'uninterested') brings more grief, it often seems, than the death of an elderly acquaintance. One is seen as inevitable, the other resistible. The sense of linguistic deprivation is unmistakable.

Robert W. Burchfield, Points of View 65 (1992).

Anyone who doubts that language changes should feel free to peruse a few pages of Beowulf.

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nobody.really
on July 26, 2016 at 18:35:15 pm

Nobody:

I agree re: how language is subject to change from all sorts of nefarious and non-nefarious inputs.
Two things: I suspect that Pulliam (and other knuckleheads such as I) are less concerned with the *semantic* change than with the "import" (there is a word that has changed over time, HA!) of the change. would you agree that at root that is the concern of many rather than the mere surface change in usage?
Second (and follow up to first):
My pet peeve is the g-damn*&*&^%^%* sportscasters. HOW THEY ABUSE THE LANGUAGE.

On a US Open golf broadcast last year, that dummy Paul Azinger attempted to describe a chip shot made by one of the competitors as follows: "He tried to LEGISLATE that in the hole"
Are you bleeping kiddin' me? When he could have simply said: "He tried to control the distance of the chip.

Yet, this is in the grand scheme of things insignificant. who cares? Right.

The problem, at least for many folks, is this: When Judicail reasoning / decision becomes synonymous with "legislating" then we have a big problem-o!
Oops, see how easy it is to fall into this trap!

Goodbye - or does that mean I am saying hello (from a third rate song by the Beatles, BTW)

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gabe
on July 26, 2016 at 23:22:05 pm

Gave--

Regarding your comment: "Government domains are populated by those “liberals” that Kevin alludes to (mistakenly to my mind, at least with respect to this particular segment of liberals) who have a rather keen and pronounced desire to change or obliterate every last vestige of traditional sensibilities."

I have only the loosest sense of where the majority will resides in our country today, but my sense is that the positions for which people like Phyllis Schlafly fought in the 1970s no longer command the respect of a majority in our country. So, for example, the legitimacy of marital rape laws (the idea that a married women has not automatically given consent to her husband to have sex, simply by marrying him), or that a married woman has no obligation automatically to defer to the wishes of her husband regarding her activities outside the home, I think today are accepted by broad majorities in our country.

That said, there seems to be within some liberal circles a desire not only to condemn the views of traditionalists on such issues, but also the desire to criminalize them. It is to that to which I was alluding, when I referenced tyranny of the majority. I have no desire to limit honest conversation on such issues, and my sympathy lies with the libertarians with regard to gender equality. But their imposition by force of state power strikes me as something that demands high scrutiny. The culture wars on both sides are about utilization of state power.

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Kevin R. Hardwick
on July 27, 2016 at 13:24:16 pm

Impeachment and conviction are legislative processes.

The legislators who would be finders of fact for indictment (impeachment) and conviction engage in the same conduct, though the responsibilities may be dispersed.

Of course that would provide no "defense" to the charge or findings; but would require a different condition of "mindsets" as to responsibilities and obligations of offices.

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R Richard Schweitzer
on July 28, 2016 at 09:48:01 am

Kevin:

You are right. I mistook your comment. Agreed with notion of tyranny of the majority - although not quite certain that a "majority" exists on ALL of the new "rights front."

take care

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gabe

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