CIVIL RIGHTS
Trump’s DOJ Mum on Supreme Court Title VII Ruling
Busy man that he is, AG William Barr hasn’t gotten around to anti-LGBTQ discrimination
BY PAUL SCHINDLER
More than seven
weeks after the United
States Supreme
Court ruled that the
sex discrimination provisions in
Title VII of the 1964 Civil Rights Act
prohibited employment discrimination
based on sexual orientation
or gender identity, Attorney General
William Barr’s Department of
Justice has offered no comment on
how the Trump administration will
carry out the historic decision.
The DOJ typically responds to
a high court ruling of this type by
offering other Executive Branch
agencies guidance on how to adjust
their policies to fall in line with its
requirements. The department’s silence
was fi rst noted in an August
5 story that USA Today published
in tandem with The 19th, a nonprofi
t news organization focused
on gender, policy, and politics.
During the three and a half years
that Donald Trump has been president,
his administration and the
DOJ in particular have weighed in
on the question that the Supreme
Court has now settled on numerous
occasions — always coming
out on the other side.
In February 2017, on his second
day as attorney general, Jeff
Sessions notifi ed the Fifth Circuit
Court of Appeals that the US government
was no longer interested
in pursuing a scheduled hearing
to challenge a federal district
court’s nationwide injunction on
a Department of Education (DOE)
guidance requiring public schools
to allow trans students access to
bathrooms consistent with their
gender identity.
Days later, the DOE and the DOJ,
in a joint Dear Colleague letter brokered
by Sessions and Education
Secretary Betsy DeVos, informed
public school districts around the
nation they were withdrawing the
equal access guidance the Obama
administration had circulated.
The Dear Colleague letter challenged
the legitimacy of the Obama
guidance by noting that “a federal
district court in Texas held that
United States Attorney General William Barr.
the term ‘sex’ unambiguously refers
to biological sex,” a conclusion
contradicted by the June Supreme
Court Title VII ruling in Bostock v.
Clayton, which consolidated three
cases — two involving anti-gay discrimination
and the third involving
anti-transgender discrimination.
Since the Dear Colleague letter,
the DOE has stepped into numerous
cases to challenge the rights
of transgender students, both in
access to bathrooms and locker
rooms and in participating in
school sports.
Later in 2017, Sessions tackled
the Title VII employment question
head on, issuing a memo stating
that the DOJ would no longer follow
a policy announced by former
Attorney General Eric Holder in
2014 that the department would
view discrimination based on gender
identity as inherentlysex discrimination.
The Supreme Court
in June adopted the Holder view,
and applied it to the question of
sexual orientation bias as well.
The DOJ under Trump opposed
the discrimination claims in all
three of the cases decided by the
Bostock ruling.
Given the consistent position
taken by the DOJ and other federal
agencies, its silence now that
its view has been rejected can
only create confusion among federal
agencies, among businesses,
schools, and other institutions,
and among victims of discrimination
who may not be aware of the
federal rights they enjoy.
In a July 16 letter to Barr, a
MATT MCCLAIN/ POOL VIA REUTERS
group of 14 legal and other advocacy
groups, including the Human
Rights Campaign, Lambda
Legal, the American Civil Liberties
Union, the National Center for Lesbian
Rights, the National Center
for Transgender Equality, and the
Transgender Law Center, noted
that the DOJ “has historically undertaken”
the job of coordinating
the implementation of rulings like
Bostock.
“It is imperative that the Department
accept this responsibility
and ensure that enforcement of
this decision, as to the defi nition of
sex discrimination through federal
civil rights laws and regulations,
is uniform across the federal government,”
the letter read. “Departmental
inaction or the issuance of
contradictory guidance regarding
the Supreme Court’s interpretation
of the scope of federal protections
against sex discrimination would
undoubtedly result in needless
confusion, and both public and
private liability.”
The 14 groups specifi cally argued
that the high court’s determination
of what constitutes sex
discrimination “applies with equal
force to other statutory prohibitions
of sex discrimination,” pointing out
that federal courts have routinely
looked to Title VII when weighing
questions regarding other civil
rights laws, such as Title IX, the
1972 statute at issue regarding the
rights of transgender students.
Three weeks have passed since
the letter went to Barr, yet the DOJ
declined to respond to either USA
Today/ The 19th or to Gay City
News.
Of the agencies contacted by USA
Today/ The 19th, only the Equal
Employment Opportunity Commission
(EEOC), the federal unit
tasked with overseeing Title VII
compliance, had moved on spelling
out the requirements of the Bostock
decision in a brief online posting.
The EEOC told USA Today/
The 19th that it was still updating
its brochure “Preventing Employment
Discrimination Against Lesbian,
Gay, Bisexual or Transgender
Workers.” Presumably, review
by attorneys at the DOJ would be
part of that updating process.
Since much of the fi reworks over
the Trump administration’s contention
that sex discrimination
protections do not cover LGBTQ
Americans have resulted from
clashes over Title IX protections
for trans students, Gay City News
contacted the Education Department
to ask for its view on how the
Bostock ruling impacts its policies.
A spokesperson for the DOE wrote
back, “The Department is continuing
to review the case.”
The American Civil Liberties
Union, one of the groups that
signed the July 16 letter to Barr,
did not respond directly to the
question of whether it viewed the
lack of action by DOJ after more
than seven weeks as “unusual.”
Instead, the group forwarded a
statement from Ian Thompson, a
senior legislative representative,
reading, “The ACLU joined this letter
to put the Justice Department
on notice. Much of the Trump administration’s
years-long assault
on the dignity and rights of LGBTQ
people was based on their view
that federal law did not protect LGBTQ
people from discrimination.
As the Supreme Court made clear
in its Bostock ruling, this view is
wrong. The Trump administration
has a responsibility under the law
to faithfully implement the Court’s
ruling, and must now undertake a
thorough review of all of its many
discriminatory, anti-LGBTQ actions
that are in direct confl ict
with the law.”
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