The United States Equal Employment Opportunity Commission (“EEOC”) reminded employers this week in no uncertain terms that they are required to provide transgender workers with access to bathrooms that corresponds with their gender identity. A failure to do so – the EEOC warned – runs the risk of violating Title VII of the Civil Rights Act.
Title VII prohibits employers—including federal, state, and local governments— from discriminating against employees on the basis of sex, race, color, national origin, and religion.
There are many reasons for opposing the North Carolina law that (along with nuking locally passed LGBT anti-discrimination provisions in the state) insists that restroom and locker facilities in government buildings and schools be determined by gender as specified on birth certificates. (The law, as the Washington Post confirms, lets private businesses continue to set their own rules for bathrooms and locker rooms, a point sometimes misreported elsewhere.)
But every bad state law is not open to the executive branch to give thumbs up or thumbs down—a power the Constitution gives to the judiciary, not the federal bureaucracy. And reinterpreting Title VII this broadly begs the question on what limits, if any, progressives think may apply to executive branch agencies.
At some point, a president not of liberal liking will obtain the White House and progressives will morph into strict constructionists who will deny they were ever anything but.
More. Yes, some of these challenges will end up before the courts, where they should be decided. But the federal government is threatening to cut funding to North Carolina’s schools based on the feds’ determination that the state’s law is invalid:
North Carolina receives more than $4 billion in federal education funding each year. Now the federal government is considering withholding that money because, the Justice Department says, the state has passed a law that violates the civil rights of transgender individuals by forcing them to use bathrooms that correspond to the sex on their birth certificates instead of their gender identity.
North Carolina is facing additional threats to its federal funding as two more agencies—the U.S. Department of Transportation and Housing and Urban Development—say they are reviewing the state’s controversial House Bill 2.
Furthermore. Pouring fuel on the fire, the Obama administration next issued a directive telling public schools throughout the U.S. to allow students to access school restrooms and locker rooms based on their gender identity. Meaning, to be blunt, penises in girls locker rooms. And any opposition, such as suggesting private changing/showering areas for non-transitioned transgender students, is prejudice, hatred, Jim Crow. End of discussion, you bigots.
Via Robby Soave at reason.com: Title IX Is a Dangerous Tool for Extending Transgender Kids’ Rights.
This case of rule by decree and federal overreach is a very valuable gift to the Trumpanzees. The issues are not so easily sorted out and probably better addressed by using common sense in various ways.
Exactly. But inflaming the culture wars serves the interests of partisans on both the left and right.
From the comments: “In the early 80s the Reagan administration cut off highway funds for any state that didn’t raise its drinking age to 21. … Don’t pretend like there’s no precedent for the federal government making this kind of threat or that it’s only Democrats that have done it.”
Response from commenter Jared: “Balderdash. The drinking age was raised nationally by Congress—when it passed the National Minimum Drinking Age Act—and so the executive branch under Reagan was executing the will of Congress. In this case, Congress, even when the Democrats were in control, has refused to pass a transgender rights law. This directive is based on the Obama administration’s radical reinterpretation of the existing civil rights laws, in the face of congressional inaction — a very different situation, and one that represents a sweeping expansion of executive power.”
22 Comments for “The Law: Whatever Federal Bureaucrats Declare It to Be?”
posted by Tom Scharbach on
Title VII prohibits employers—including federal, state, and local governments— from discriminating against employees on the basis of sex, race, color, national origin, and religion.
The courts will decide whether or not the EEOC is correctly interpreting Title VII. The EEOC has taken the position that discrimination on the basis of sexual orientation and transgender identity is covered by Title VII:
and cases that will ultimately decide the issue are in the pipeline.
The EEOC’s decision regarding LGBT discrimination can be traced back to a unanimous 1998 U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), written by Justice Scalia.
The Oncale case confronted Title VII’s prohibition of discrimination “because of sex” after Joseph Oncale was brutally sexually harassed physically and verbally by men he worked with on an oil rig. The District Court granted summary judgement Sundowner, and 5th Circuit Court of Appeals affirmed. The Supreme Court reversed and remanded the case for further consideration with the instruction that a male can be discriminated against by members of the same sex under Title VII.
Although Justice Scalia’s decision acknowledged that male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VI” … “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Whether the EEOC’s extension of Title VII to include LGBT discrimination, and under what circumstances, is likely to be decided within a couple of years.
posted by Tom Scharbach on
A note: I commented, but realized that the comment embedded two links within an quote from the EEOC. In the past, comments with more than a single link have been picked up by a spam filter, so here is the post without the links:
Title VII prohibits employers—including federal, state, and local governments— from discriminating against employees on the basis of sex, race, color, national origin, and religion.
The courts will decide whether or not the EEOC is correctly interpreting Title VII. The EEOC has taken the position that discrimination on the basis of sexual orientation and transgender identity is covered by Title VII:
and cases that will ultimately decide the issue are in the pipeline.
The EEOC’s decision regarding LGBT discrimination can be traced back to a unanimous 1998 U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), written by Justice Scalia.
The Oncale case confronted Title VII’s prohibition of discrimination “because of sex” after Joseph Oncale was brutally sexually harassed physically and verbally by men he worked with on an oil rig. The District Court granted summary judgement Sundowner, and 5th Circuit Court of Appeals affirmed. The Supreme Court reversed and remanded the case for further consideration with the instruction that a male can be discriminated against by members of the same sex under Title VII.
Although Justice Scalia’s decision acknowledged that male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VI … statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Whether the EEOC’s extension of Title VII to include LGBT discrimination, and under what circumstances, is likely to be decided within a couple of years. As is the case with all government agencies, the EEOC cannot act by fiat without court review. In fact, the EEOC has initiated several court cases testing its interpretation of the law.
posted by Tom Jefferson 3rd on
If Trump is elected President, it could be government by cow pies.
posted by Tom Scharbach on
At some point, a president not of liberal liking will obtain the White House and progressives will morph into strict constructionists who will deny they were ever anything but.
The “strict constructionist” label is inept and a poor analogy (put the spin away, Stephen, and think about what words you use connote), but there will be court challenges going forward, of course, no matter who holds the White House, just as there have been in the past.
Moderates/liberals/progressives will consider some executive/administrative decisions made by conservative Presidents inappropriate/overreaching, and challenge the decisions in court. When liberal Presidents are in the White House, the challenges coming from moderates/conservatives, as they do now. And no matter who is in the White House, special interest groups (e.g. the NRA) will bring challenges.
It part of the system of checks and balances.
posted by Tom Scharbach on
When liberal Presidents are in the White House, the challenges will be coming from moderates/conservatives, as they do now.
As in ….
Fear not, Stephen. The courts will decide whether or not the EEOC is overreaching. As you pointed out (but apparently don’t believe), that’s the function of the Judicial Branch.
posted by Houndentenor on
There have been a number of court rulings already affirming that discrimination against trans people is a form of sex discrimination which is already illegal. Stephen and his ilk can scream about this all they want, but the courts are going to rule for letting trans people pee in the most obviously appropriate restroom. Nothing else makes sense. Some of the state laws being considered would make even post-op trans people use the restroom corresponding to their “birth gender”. This is nuts. It’s not a big issue and not a problem, except in the minds of right wing nuts looking for a new group to demonize since it’s 2016 and gays just aren’t all that icky to most people any more. Shame on gay people especially for playing along with the faux outrage over trans people and especially in conflating them into sexual predators. That last line of attack is especially hypocritical considering how many of the same right wingers have rallied around actual sexual predators like Josh Duggar and Dennis Hastert.
posted by Tom Scharbach on
There have been a number of court rulings already affirming that discrimination against trans people is a form of sex discrimination which is already illegal. Stephen and his ilk can scream about this all they want, but the courts are going to rule for letting trans people pee in the most obviously appropriate restroom. Nothing else makes sense.
What Stephen (“But every bad state law is not open to the executive branch to give thumbs up or thumbs down—a power the Constitution gives to the judiciary, not the federal bureaucracy. And reinterpreting Title VII this broadly begs the question on what limits, if any, progressives think may apply to executive branch agencies. “) and his cohorts on conservative Christian right conveniently fail to notice/mention is that the EEOC cannot enforce a ruling except by means of voluntary cooperation, binding cooperative mediation or a federal court action:
The “bathroom bills” are a political wedge issue, nothing more or less, finely tuned to energize the conservative Christian (sexual predators preying upon innocent children in bathrooms) and anti-government (out-of-control liberal federal bureaucracy) wings of the Republican base. It is a near-perfect issue for whipping up hysteria among the base, and it is being played to the hilt by the anti-gay, anti-government industry.
But it is all bullshit, as you point out. None of the shills for the “bathroom bills” have yet to be able to come up with a single example of a transgender person using an appearance appropriate bathroom creating a problem for anyone. The “bathroom panic” has been manufactured out of wholecloth.
I don’t think much of Jimmy LaSalvia (he headed up GOProud back in the days when homocons were frantic to sound gay-supportive while avoiding the marriage equality issue) but he has an article in the Advocate this morning that has a telling observation:
True. And, like it or not (Stephen and other homocons who spent years trying to drive a wedge between the “LG” and “T” constituencies of “LGBT”, do not like it), gays and lesbians, under wedge attack on “religious freedom” and a host of other proposed legislation intended to delegitimize marriage equality, are now bound together with transgenders on the “bathroom bills” wedge issue.
As LaSalvia points out, gays and lesbians have been there, done that. Same old game, played by the same folks, played in the same way. Anita Bryant never seems to die.
posted by Wilberforce on
I was going to comment. But I can’t say it better than Tom S.
posted by Tom Scharbach on
More. Yes, some of these challenges will end up before the courts, where they should be decided. But the federal government is threatening to cut funding to North Carolina’s schools based on the feds’ determination that the state’s law is invalid. … And this: North Carolina is facing additional threats to its federal funding as two more agencies — the U.S. Department of Transportation and Housing and Urban Development — say they are reviewing the state’s controversial House Bill 2.
Stephen, Stephen. It is the job of federal agencies to enact regulations applying laws to specific situations, and to enforce the applicable regulations.
The regulations are the product of a (usually lengthy) consideration process, most often with mandated opportunity for public input and, in the case of most regulations, public hearings. The enforcement process (typically investigation, notice, efforts to obtain voluntary compliance and/or mediation, followed on by court proceedings when compliance cannot be voluntarily obtained) is clearly stated, must be followed by the agency, and is subject to court review.
I realize that the actual process by which regulations are adopted and enforced doesn’t fit the conservative meme about wild-eyed liberal bureaucrats running amok, “legislating” by fiat without restraint and running roughshod over the judicial process, but the facts do matter.
Not all regulatory decisions are litigated, of course. Most are resolved by voluntary compliance or by mediation. But you can bet that all of the federal government’s actions with respect to HB2 will be challenged in court, and that the courts will decide whether or not the government’s agencies are overreaching.
Methinks that you’ve got your meme way ahead of the facts.
The courts, in any event, are unlikely to save HB2. The “bathroom bill” section of the law is a case of direct government discrimination, which is always subject to very careful (and typically hostile) scrutiny, and, as Houndentenor pointed out, “[t]here have been a number of court rulings already affirming that discrimination against trans people is a form of sex discrimination which is already illegal”. The state preemption section of the law (“nuking locally passed LGBT anti-discrimination provisions in the state” as you put it) runs directly and head on into Romer, which is a long-established precedent.
Actions have consequences, and Republicans in North Carolina have done the state no favors with this legislation. The state stands to lose significant federal funding, and, as we all know, a significant number of businesses are following Nancy Reagan’s advice about getting involved with sex, drugs (and maybe rock and roll): “Just say no.”
Unintended consequences result when politicians rush a political stunt through the legislature in one day, without hearings or consideration.
Governor McCrory campaigned as “business Republican” when he won office, didn’t seem excited about signing the bill but did, and he may well lose in November as a direct result of his cave-in on HB2. I can’t say that I feel sorry for him. He campaigned on and won his office by being “the adult in the room”, and he let the conservative Christians box him in. He should have vetoed HB2.
posted by Jorge on
But every bad state law is not open to the executive branch to give thumbs up or thumbs down—a power the Constitution gives to the judiciary, not the federal bureaucracy.
I believe that’s why the Justice Dept. is suing?
(Mr. Miller is referring to why North Carolina is suing.)
The Civil Rights Act is a marriage of the Johnson Grandpappy Big Government days and a once-in-a-generation social reform movement. Of course it establishes that every bad state law is open for the executive branch to give a thumbs up or a thumbs down.
This is not arbitrary or unpredictable on the federal government’s part. There is halfway arguable Supreme Court case law supporting its interpretation (so sayeth the news on the internet), and that probably means the Justice Department’s interpretation should stand even though it is stupid and wrong. Maybe America should be more careful next time it fights for civil rights at the same time a liberal Democrat is in the White House… okay, obviously that’s not happening.
The EEOC’s decision regarding LGBT discrimination can be traced back to a unanimous 1998 U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), written by Justice Scalia.
That was one of the first cases I followed closely at the time, and that was before I even knew I was gay.
I’m not at all certain the Justice Department’s interpretation neatly follows from that case, though. It seems to me more that it is extremely likely one will find an association or a correlation between sex discrimination and discrimination due to sexual orientation. Most anti-gay discrimination “on the street” has a gendered subtext to it. But most anti-gay discrimination in word and law has a religious subtext to it–I don’t think this would be covered under Title VII. Since most anti-gay discrimination is likely to be hostile work environment discrimination, it makes sense for the EEOC to adopt the position that it has. But that is quite different from putting sanctions because of a law.
posted by Jorge on
I don’t think much of Jimmy LaSalvia (he headed up GOProud back in the days when homocons were frantic to sound gay-supportive while avoiding the marriage equality issue) but he has an article in the Advocate this morning that has a telling observation:
“Trump’s brash politics of division and pitting some Americans against others is something the LGBT community has been fighting for decades. Nobody knows what it’s like to have their lives used as a political wedge like we do. So when Trump demonizes and marginalizes some groups of Americans, we have a sense of empathy and solidarity with those groups.”
So Trump’s projected to get less (a lot less) than Bush did on the year he supported the Federal Marriage Amendment? I mean talk about accusations of using gays as a wedge issue.
I don’t agree with LaSalvia’s observation at all. I’m sure gays are less racist than the rest of the country, but not so much so that we’d run further away from Trump when the rest of the party is moving toward him.
I think it’s more likely because so few gays are Republicans that we mostly fall in the “establishment” camp that Trump is so intent on dismantling. There are several trains of thought that argue that Hillary Clinton is more conservative (stronger on foreign policy, better for national stability, more fiscally conservative) than Trump is.
Or maybe it’s because Megyn Kelly is the Madonna of the gay political class?
I don’t consider Trump anywhere close to a homophobe, but I will say that gays seem to be about the only group he has not spoken of as if we are actually human beings–it’s all intellectual to him.
posted by JohnInCA on
“There are many reasons for opposing the North Carolina law […]”
I’m curious if Miller will ever enumerate one. As far as I can recall, he’s complained about the way “progressives” “forced” the issue, and complained about the backlash to North Carolina’s HB 2, but he’s never actually said a word opposing HB 2.
posted by Jorge on
One does not belabor a concession that is peripheral to the main argument.
posted by Houndentenor on
Not only does he have nothing, but even he knows this is just a distraction from the anti-gay platform of the GOP. How are any gay people still Republicans?
posted by Tom Scharbach on
The latest wiggle in the saga is that Ted Cruz, Ken Cuccinelli and Tony Perkins have joined forces to try to insure that the 2016 Platform (1) doubles down on opposition to same-sex marriage and Obergefell, (2) fortifies platform language on “religious freedom” to cover both private individuals and government officials, and (3) supports “bathroom bills”.
The President Presumptive’s response to that effort, and the Supreme Court list he is supposedly preparing, will be an early indicator about whether he will be a force for change within the party on LGBT issues or just another Republican “gay supportive” nebbish.
posted by Tom Scharbach on
As a side note (so as to not get so wrapped up in the bathroom that we lose sight of the scope of the Republican “massive resistance” effort), the ACLU filed a federal lawsuit this week challenging Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act”, and the Campaign for Southern Equality filed a motion seeking to reopen its 2014 federal lawsuit challenging the constitutionality of Mississippi’s ban on same-sex marriage.
The “Protecting Freedom of Conscience from Government Discrimination Act” protects businesses and individuals who refuse to provide goods, services or facilities for a same-sex wedding, and allows government officials and employees who authorize or issue marriage licenses to recuse themselves from doing so, in both cases because of because of religious or moral objections.
The ACLU lawsuit targets both the state’s sanctioning of private business discrimination and the state’s recusal grant to public officials. The Campaign for Southern Equality lawsuit, if reopened, will seek an order requiring Mississippi County Clerks to issue marriage licenses to same-sex couples without delay.
We will have to see how the legal challenges turn out, but I suspect we will see a lot of litigation going forward over the next several years.
posted by Houndentenor on
In the early 80s the Reagan administration cut off highway funds for any state that didn’t raise its drinking age to 21. Most states raised their age from 18 to 21 except Louisiana which held out for a few years before giving in.
Don’t pretend like there’s no precedent for the federal government making this kind of threat or that it’s only Democrats that have done it.
posted by Jared on
In the early 80s the Reagan administration cut off highway funds for any state that didn’t raise its drinking age to 21. … Don’t pretend like there’s no precedent for the federal government making this kind of threat or that it’s only Democrats that have done it.
Balderdash. The drinking age was raised nationally by Congress—when it passed the National Minimum Drinking Age Act—and so the executive branch under Reagan was executing the will of Congress. In this case, Congress, even when the Democrats were in control, has refused to pass a transgender rights law. This directive is based on the Obama administration’s radical reinterpretation of the existing civil rights laws, in the face of congressional inaction — a very different situation, and one that represents a sweeping expansion of executive power.
posted by Tom Jefferson 3rd on
The U.S. Supreme Court upheld the decision with regards to the Federal drinking age. Essentially.
, a question of whether or not the Federal government could put a requirement onto its highway funding bill dealing with highway safety.
posted by JohnInCA on
Counterpoint: The ACA (as passed) expanded medicare to what, 200% of the poverty level or something? The first lawsuit against the ACA argued that this was unconstitutional coercion, as it required (eventually) action from the states.
The Roberts court agreed, and made the medicare expansion optional, leaving us the current situation where in some states you can make too much to qualify for medicare, but not make enough to get a subsidy on the exchanges.
So I’m not convinced the Roberts court has such a pro-Fed position when it comes to what kind of coercion is or isn’t acceptable.
posted by Jorge on
As a side note (so as to not get so wrapped up in the bathroom that we lose sight of the scope of the Republican “massive resistance” effort)
Heaven forbid Republicans lose sight of their massive resistance effort and allow the GLBT community to run the table on everything except bathrooms (please! please! please! please! please!)
posted by Tom Scharbach on
No need to be concerned, Jorge. The Republicans have about 200 bills going this year to fight/constrain “equal means equal”, covering soup to nuts.