Civil Rights

Trump’s DOJ Makes it Official, Claims Trans Rights Don’t Exist

JM Ashby
Written by JM Ashby

An internal memo from the Department of Health and Human Services (HHS) was leaked to the press this week and it showed that the Trump regime was preparing to tell all federal agencies that transgender people are not covered by federal civil rights laws. The Trump regime will argue that laws against discrimination based on "sex" do not include gender identity, which is nonsensical.

Trump's Department of Justice (DOJ) has now filed a brief with the Supreme Court arguing that federal laws against discrimination in the workplace do not apply to transgender people.

From Bloomberg Law:

Solicitor General Noel Francisco told the high court that a civil rights law banning sex discrimination on the job doesn’t cover transgender bias. That approach already has created a rift within the Trump administration, contradicting the Equal Employment Opportunity Commission’s view of the law it’s tasked with enforcing.

A Michigan funeral home wants the high court to overturn a U.S. Court of Appeals for the Sixth Circuit decision finding that the company violated federal workplace discrimination law when it fired Aimee Stephens, a transgender worker. The EEOC successfully sued on behalf of Stephens in that case, but the Justice Department has the sole authority to represent the government before the Supreme Court. The DOJ told the high court that the Sixth Circuit got the case wrong.

Just because the Trump regime has taken this position does not necessarily mean the Supreme Court or any other lower federal court will agree, but the chances that they will are certainly higher when the Department of Justice is making the argument.

It's also possible the Supreme Court will refer this specific case back to the Sixth Circuit now that the federal government (DOJ) is taking a position that contradicts another position held by the federal government (EEOC).

If the Trump regime successfully argues that "sex" does not apply to gender, it's a slippery slope from there and this narrow reading of the law may not be limited to transgender people. It could applied to cis gender people who do not necessarily conform to gender stereotypes. It could be applied to cis women who do not present themselves in a manner that society typically judges to be feminine.

The idea that "sex" does not apply to gender identity is an interpretation of the law that would judge people almost entirely based on their physical appearance alone as many transgender people no longer even vaguely appear to be a member of the opposite sex. Those who easily "pass" as the gender they identify as may escape scrutiny while those who are just beginning their transition could be essentially outlawed from public life.

Just the same, non-binary or androgynous people could find themselves pulled in different directions as society judges them based on appearance, with appearance being completely subjective. Leaving it up to the government to determine if someone is allowed to "pass" or count as a man or woman, or neither, is a recipe for legal and moral disaster.

From a purely practical perspective, this is really bad policy, but it's also cruel and inhumane. It's also unconstitutional if the Equal Protection Clause of the Fourteenth Amendment means anything at all.

If the Trump regime gets their way, cities and states must pass their own nondiscrimination laws as quickly as possible and we as individual citizens and consumers should not spend a single a dime at any businesses that discriminates. We must make it politically and financially poisonous.

  • katanahamon

    And in other ..news, while I’m ecstatic Megyn Kelly was canned, she’s still going to have her 69 million dollar contract paid off. I think that’s the number, I might have to be checked on that. The only possible glimmer of hope would be a clause that says she can’t work for anyone else for the remainder of the contract..but, what are the odds of actual good news today? The day NBC hired her I was simply appalled..trying to make her into a reputable journalist was an impossible task. NBC’s reputation certainly took a hit on that decision.

  • katanahamon

    Ok..speaking of the DOJ, Grassley has now referred Avenatti and Swetnick for investigation. I’m just..roiling with anger and disgust. Reopen the Kavanaugh ASAP..

    From Guardian..

    “Chuck Grassley, the chair of the Senate judiciary committee, has referred the lawyer Michael Avenatti and Julie Swetnick, one of Brett Kavanaugh’s accusers, for criminal investigation.

    In a statement, Grassley said he was referring the two to the justice department for a “criminal investigation relating to a potential conspiracy to provide materially false statements to Congress and obstruct a congressional committee investigation”.

    Swetnick, who was represented by Avenatti, came forward in late September to allege that Kavanaugh took part in efforts to gang-rape women at drunken parties. She said she too was gang-raped at one such party, but did not directly accuse Kavanaugh of being involved.”

    • Well if Grassley wanted to motivate Dem voters more than they already are, then this will definitely help. And if Swetnick was telling the truth, and i believe she was, then that investigation can be made public providing the proof that we didn’t get with the Kavanaugh/Ford investigation. So it’s a dumb move on Grassley’s part of at least these two reasons.

      • katanahamon

        Yes..I just edited about Avenatti seeming to think this will open up investigative opportunities about Kavanaugh. Silver lining, maybe? Fingers crossed..

  • Can we all run off to Twitter now to verbally b*tch slap Caitlyn Jenner for being such a vocal supporter of Trump? We frigging told you so. My daughter and her trans and non-cis gendered friends are very, very worried. They’re only teenagers and they don’t need this kind of crap–as if their lives aren’t hard enough already.

  • muselet

    From a purely practical perspective, this is really bad policy, but it’s also cruel and inhumane. It’s also unconstitutional if the Equal Protection Clause of the Fourteenth Amendment means anything at all.

    Bad policy is all we can expect from today’s GOP, especially when they listen to the Talibangelicals, who are mightily squicked by anyone who doesn’t look like they stepped out of a 1950s-era sitcom.

    Cruel and inhumane are the whole point of this brief and the thinking—if that be the right word—underlying it. Making others suffer seems to be the only way for Righties to feel good.

    The self-styled Originalists oozing out of the Federalist Society’s wingnut breeding facilities insist that since the men who wrote the 14th Amendment only had … erm … dusky people in mind, women and others—especially icky people —aren’t covered. (Oddly, they abandon that argument as soon as they can use the 14th to get a result they like. Why, it’s almost as if Originalism is pure hooey.)

    As I keep saying, it’s going to take decades to undo the damage done during the current Age of Idiocy.

    –alopecia

  • Username1016

    Their attempts to roll back the entire 21st century and half of the 20th are unceasing and overwhelming. Vote. Them. Out. (And even that may not be enough — think of all the hate and spite that’s been unleashed…)