Originally posted here.
Attorney General Eric Holder has issued an edict, through a memorandum, that cross dressing and transsexualism is now protected under federal civil rights laws which were designed to protect women from sex discrimination. Existing federal law provides no statutory support for treating cross-dressers and transsexuals as the law treats female victims of discrimination.
This means that the Justice Department could now, for example, consider the decision by a school or church to not hire a transvestite as a violation of federal law.
Holder ordered that the Department of Justice will stop making arguments in litigation suggesting that transgender people are not covered by Title VII, the federal law that prohibits sex discrimination in employment.
Holder’s memo says that “sex” under Title VII doesn’t only now pertain to sex discrimination. To Holder and his army of DOJ lawyers, federal law now prohibits discrimination based on transgender status, including discrimination “because an employee’s gender identification is of a particular sex, or because the employee is transitioning, or has transitioned to another sex.” The memo says that “the Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).”
DOJ lawyers have enormous power to bring civil rights cases against entities ranging from local government to school districts. The DOJ must also defend the federal government against discrimination claims brought by federal employees. In lawsuits involving federal employees, DOJ has in the past advanced the sound legal axiom that Title VII does not provide protection for transgender workers.
Holder bases his edict on a federal Equal Employment Opportunity Commission ruling that transvestites and transsexuals are protected by federal law from discrimination against their cross-dressing gender-switching behavior. A ruling from the EEOC has no jurisprudential effect and no binding authority on the Department of Justice. Had the case been decided by the Supreme Court or another federal court of appeals, Holder’s decision would have had more merit.
The EEOC is not entitled to deference, and certainly no deference on a ruling so far outside the law. The Holder Justice Department has bullied school districts that prohibited boys in high school from dressing in drag as part of a school dress code. In New York, one male student came to school dressed in a mini skirt, stilettos and a pink wig. As I described inInjustice, Holder’s DOJ took action:
The school district was forced to pay the transvestite-child $50,000, pay for counseling services with a psychiatrist specializing in “gay, bisexual and transgender youth issues,” hire an expert to review the school’s “gender expression” programs, and hire a second expert to conduct annual training on “gender identity and gender expression” discrimination. In short, the DOJ rolled the school district. Obviously, the school district’s lawyer, unlearned in the lawless proclivities of the Civil Rights Division, recommended this complete capitulation and settlement terms far beyond what the law required. The final consent decree appears to contain only one provision requested by the school district: an agreement not to mention any employee’s name. Then again, perhaps that’s the best that can be hoped for when the plaintiff is largely inventing the legal rules.
Over 200 Democrat legislators think it requires an act of Congress to change discrimination law so radically, and they are right. That’s why H.R. 1755 was introduced in Congress with scores of co-sponsors. That’s how our legal system works. The fact that this bill was introduced, and has not passed, highlights the lawlessness of Holder’s edict. When someone wants to expand protected classes under civil rights laws, Congress passes a new law. That’s how it works in America. But in the age of Obama, lawlessness is the quicker, more expedient way to impose the views of the outvoted minority onto the rest of the country.