//  10/7/19  //  Commentary

There has been an array of critical commentary about the Department of Justice under President Trump. Under his leadership, DOJ has declined to enforce various civil rights statutes; reversed positions in several cases with an eye toward undermining civil rights laws; and so on.

One recent decision that reflects DOJ’s fall is the Department’s choice to assert a governmental interest in discrimination. In various papers accompanying various requests to the Supreme Court, DOJ has affirmatively argued that it has an interest in perpetuating discriminatory treatment.

Consider, for example, the stay applications that accompanied DOJ’s petition for certiorari for judgment in the cases involving the ban on transgender service in the military. In the stay applications, DOJ argued that allowing transgender individuals to enlist in the military would result in “severe harm to the federal government.” As the plaintiffs pointed out in their district court briefing:

The government’s argument (at 11) that the mere presence of transgender individuals in the military causes “severe harm to the federal government” belies its attempts to minimize the constitutional, stigmatic, and practical injuries threatened by the ban. The government argues that a stay of the injunction is warranted because the mere presence of transgender servicemembers—who meet the same fitness requirements as others—compromises the military’s mission. Transgender persons serving under the Mattis Implementation Plan, as the government’s brief makes plain, would be harmed by an official policy branding them as unfit, unworthy, and a burden to the Nation they serve.

Now DOJ is at it again, this time in the Title VII cases. DOJ made a motion for divided argument in Harris v. EEOC,requesting the Court allow the government to appear on behalf of the employers. (The Court never rejects the federal government’s request to participate in an argument, so it unsurprisingly granted this request.)

But this particular request to participate in the argument stood out because of why DOJ argued it had an interest in the case. DOJ asserted an interest in allowing employers to discriminate against lesbian, gay and bisexual people on the ground that Title VII “applies to the federal government as an employer.”  The argument seems to be that DOJ has an interest in making sure that Title VII does not prohibit the federal government from discriminating against lesbian, gay, bisexual and transgender individuals in its capacity as an employer.

As with the case challenging the ban on transgender service in the military, DOJ’s arguments in support of discrimination merely serves to underscore the importance of the Court’s pending Title VII cases. DOJ is lobbying the Court to preserve its ability and other employers’ ability to fire LGBTQ individuals from the workplace. If the Court gives them that power, there is it little reason to think that this administration and its supporters will not exercise it.

Some may think—and hope—that discrimination against the LGBTQ community is a thing of the past, and that the Court’s decision in Obergefell v. Hodges (and later decision in Pavan v. Smith)secured important protections for the LGBTQ community that are not going to go anywhere, even with the new appointments to the Court.  DOJ’s arguments suggest that would be naïve.  (DOJ has also decided to intervene in a contract case where a Catholic high school allegedly fired a teacher for being gay. In that case, DOJ is making the stunningly sweeping claim that an organization is immune from a generally applicable standard, rule, or statute if the organization’s could have been motivated by religious beliefs. The case involves a breach contract claim.)

There used to be a time when DOJ asserted that the federal government had an interest in protecting individuals’ rights to be free from discrimination. But under the Trump administration, DOJ now maintains that it has an interest in preserving the government’s right to discriminate. What an embarrassment.

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Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

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