The Trump Justice Department is urging the federal employment rights agency to change its position and tell the U.S. Supreme Court to rule that businesses can discriminate against transgender employees without violating the law, according to sources familiar with the deliberations.
The Equal Employment Opportunity Commission has so far maintained its Obama-era position that businesses are banned from discriminating against LGBT workers because it’s a form of sex bias. But the Justice Department disagrees and is hoping to persuade the EEOC to flip sides. Political leadership in the Solicitor General’s office wants the EEOC on board to show the high court that the Trump administration is now unified in the belief that Congress didn’t have lesbian, gay, bisexual, and transgender workers in mind when it passed a federal workplace discrimination law more than five decades ago, sources said.
The DOJ has until Aug. 16 to lay out the government’s argument before the high court in a case involving a Michigan funeral home director who was fired after she announced she was transitioning to a woman. The EEOC successfully sued on behalf of the woman—Aimee Stephens—but the Justice Department is representing the commission before the Supreme Court. The high court will hear oral arguments in that case on Oct. 8, the same day the justices will also consider a pair of cases involving gay workers who say they were fired because of their sexual orientation.
Justice Department leadership has ramped up talks with the EEOC’s Republican officials in recent weeks, expressing strong interest in having the commission on board in the Stephens case, the sources said. The commission’s blessing isn’t necessary, but having the EEOC’s general counsel named on the brief would allow the Trump administration to present a unified front in a contentious, potentially landmark case.
Spokespeople for DOJ and the EEOC did not immediately respond to request for comment. A senior EEOC attorney declined to comment.
Reversal Considered Unlikely
The EEOC appears unlikely to reverse its position at this stage. The five-member commission, which currently has a 2-1 Republican majority with two vacancies, would need to vote and approve such a move, current and former EEOC sources said. Commissioners Victoria Lipnic (R) and Charlotte Burrows (D) have said they believe that LGBT discrimination is a form of sex bias already banned by federal law. Lipnic recently told the DOJ that she would vote against signing the brief, a source said.
Recently confirmed EEOC Chair Janet Dhillon (R) would have the authority to call a commission vote, but has not yet done so, according to sources. Both Dhillon and new EEOC General Counsel Sharon Gustafson, who was just sworn into office last week, have thus far shied away from offering their legal views on gay and transgender bias in the workplace.
There is also some chatter that Gustafson, as the agency’s top lawyer, could simply sign onto the brief without the commission’s blessing. The Stephens case stemmed from an EEOC charge, which was approved at that time by a commission vote. Although the commission approved the charge on the grounds that transgender discrimination is a form of sex bias, it isn’t entirely clear whether the general counsel would still need permission from the panel to reverse course at the Supreme Court level.
“For me, it’s hard to imagine any litigation benefit that would be achieved by the EEOC political appointees reversing the Commission’s position just before the government’s brief is due and taking a position completely contrary to the position it argued successfully before three U.S. Circuit courts, two sitting en banc,” the Obama-appointed former EEOC General Counsel David Lopez said in an email. “Not one justice will give this persuasive weight and, at best, will find it puzzling.”
High Court to Weigh In
The trio of cases before the Supreme Court question whether sexual orientation and gender identity are protected characteristics under Title VII of the 1964 Civil Rights Act, which bans sex discrimination. The question has divided federal appeals courts in recent years.
The Justice Department last year asked the court not to take up the Stephens case. The DOJ added, however, that the court should overturn a federal appeal court’s decision that LGBT discrimination is a form of sex bias if the justices decided to weigh in.
“The court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity,” Solicitor General Noel Francisco said in a brief filed with the court.
Former Attorney General Jeff Sessions issued a memo in October 2017 arguing that the federal law does not ban transgender discrimination.
Lipnic told Bloomberg Law last year that the EEOC will continue to investigate LGBT discrimination allegations as the case proceeds. Dhillon, the EEOC’s new chairwoman, hasn’t formally announced any change in that stance since being sworn in less than three months ago.
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