Title VII and whether 2+2=5 because it would be good for social justice if it did

An email from GLAAD (formerly the Gay & Lesbian Alliance Against Defamation) declares that:

Attorney General Jeff Sessions just reversed an Obama administration policy that protects transgender people from workplace discrimination. …

The law in question is Title VII, a 1964 civil rights law which prohibits workplace discrimination on the basis of sex. The Obama administration issued policy guidance to clarify that “sex” includes gender identity, which means that if a trans person experiences discrimination, violence, or harassment at work, they could pursue legal recourse. But now Jeff Sessions has erased that protection with a single memo.

The Trump administration is putting LGBTQ people at risk every day — and every day they’re showing us just how far they’ll go to attack this community.

However, as I posted on Facebook:

The above Washington Times article reports that:

“The Department of Justice cannot expand the law beyond what Congress has provided,” said DOJ spokesman Devin O’Malley. “Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action.”

Mr. Sessions’ memo goes on to say that it should not “be construed to condone mistreatment on the basis or gender identity, or to express a policy view on whether Congress should amend Title VII or provide different or additional protection.”

“The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals,” he wrote.

Liberal-leaning and conservative-leaning appellate courts have split on how elastic interpretations of Title VII’s prohibition on sex discrimination can be, and whether the law can be stretched to include sexual orientation and gender identity. Those favoring a more creative approach to interpreting the language of the law will understandably oppose the Trump administration’s position. But characterizing it as a “blatant attack on transgender people,” as GLAAD does, is just more partisan hackery.

3 Comments for “Title VII and whether 2+2=5 because it would be good for social justice if it did”

  1. posted by Tom Scharbach on

    The application of Title VII to transgendered men and women is just one of the many issues on which LGBTs are going to have to fight it out in court with the Trump administration over the coming years, just as Christio-Republicans fought it out in court with the Obama administration on LGBT issues during the last eight years.

    The two political parties are on more or less opposite ends of the pole on LGBT issues, so neither the Trump administration’s nor the Obama administration’s actions in this regard are unexpected.

    The Trump administration is methodically dismantling the Obama administration’s executive orders, directives, policies and procedures advancing equal treatment under federal law/regulations for LGBTs. We can expect a lot of litigation about the administration’s actions. We can also expect a lot of litigation involving state-level Christio-Republican efforts to dismantle or limit Obergefell and related cases (the Texas cases, for example).

    Freedom for All Americans has a litigation tracker covering the most significant current litigation, and the tracker is worth taking a look at from time to time, now and going forward.

    Two observations:

    (1) I didn’t (and don’t) expect the Trump administration to lift a finger to advance “equal means equal”. My hope, though, based in part on the important role that LCR claimed for itself in the administration, was that the “most gay-supportive” President might put a damper on the more extreme efforts of the anti-equality team with which he surrounded himself in the Cabinet, minimizing the damage.

    That’s not how it worked out. The President seems hell-bent to exceed expectations of the conservative Christian base, doubling down on what the base asks for.

    Take transgender men and women in the military, for example. The conservative Christian base was seeking an order banning the military from paying for sex reassignment surgery and post-surgical treatment. Instead of doing so, the President issued an order requiring the DOD to remove transgender military personnel and ban future enlistment. The military didn’t want that result, the American people didn’t want that result, and quite possibly even the conservative Christian base didn’t want that result.

    With this President, when the conservative Christian base says “Jump!”, the question isn’t “How High?” This President launches himself into outer space, all by himself.

    (2) Although the “equal means equal” battle will be fought in the courts during the Trump administration’s tenure, the political battle remains critical to long term success for “equal means equal”.

    The “most gay supportive” President will almost certainly be called upon to appoint one, two or three Justices during his tenure, starting with Justice Kennedy’s seat after this Term, and he is almost certain to appoint future Justices off the Heritage Foundation list. The President has been appointing far-right judges at the District Court and Circuit Court level in significant numbers.

    As a result, our prospects in the courts will grow dimmer and dimmer going forward, and it is almost certain that we will see the legal principles underlying Obergefell (enumerated by Justice Kennedy and much disparaged by conservatives) be abrogated during the next decade, resulting in numerous decisions cutting back on the principle of “equal means equal”.

    That result will turn the battle back to the political arena, and we had better be prepared. It is not time to lean on the shovel handle and take a breather.

  2. posted by Jorge on

    “Title VII and whether 2+2=5 because it would be good for social justice if it did”

    Game, set, match with respect to gays as far as I’m concerned.

    But did you know? There’s a new math out there. You have elementary school kiddies doing 2.5 + 2.5 using geometry instead of rounding. This way you get 5 instead of 6.

  3. posted by Tom Scharbach on

    For those interested, the Sessions memo is now online in pdf format.

    The memo’s scope is remarkably extensive, and will be the subject of a lot of litigation over the next few years.

    It will be very interesting to see how the guidance — particularly guidance that effectively eliminates the “substantial burden” test from the “substantial burden, compelling interest, least restrictive means” test — plays out in the courts, and how that changes after Justices Breyer, Ginsburg and Kennedy resign/die and are replaced by Heritage Justices.

Comments are closed.