Christian Adams reports that Eric Holder has issued a decree stating that cross dressing and transsexualism are now protected under federal civil rights laws designed to protect women from sex discrimination. According to Holder, the “most straightforward reading” of Title VII’s bar on discrimination ‘because of … sex’ — indeed, the “plain meaning” of its text — is that it bars discrimination “based on gender identity, including transgender status.” Therefore, DOJ will adopt this reading, one that somehow escaped it, and nearly everyone else, for 50 years.
I’m against discriminating against the “transgendered,” just as I’m against discriminating against blacks and females. Whether, at this point in our history, the benefits of a federal law prohibiting these forms of discrimination in employment outweigh the costs — in litigation expenditures, workplace disruption, and coerced bad employment decisions — is a different question. But I suppose it could be argued that, nowadays, the transgendered need more protection against discrimination than blacks and females do.
Congress, though, has never seen fit to outlaw employment discrimination against the transgendered. It certainly didn’t do so when it outlawed sex discrimination in 1964. Back then, the mere suggestion that the ban on sex discrimination had this meaning would have induced gales of laughter, followed by the defeat of the legislation as drafted.
Nor, except through shameless punning, is it plausible to find a ban on transgender discrimination in the plain words of the statute. Holder asserts that “Title VII’s prohibition against discrimination ‘because of … sex’ encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether.”
But as Ed Whelan points out:
A man who identifies as a woman. . .is still a man. Indeed, when anyone points out this elementary biological reality, transgender activists insist that gender is fundamentally different from sex.
Holder’s position contradicts the one DOJ has consistently taken. It accords with the view taken by the EEOC, an outpost of extreme leftism.
EEOC receives no deference when it takes positions like this in court, except from leftist judges already prepared to use Title VII to remake public policy in ways unimaginable to those who wrote the law. DOJ is unlikely to fare any better in advancing Holder’s view that Title VII prohibits discrimination based on an individuals decision to identify with, or attempt to transition to, another gender.
Instead, the law likely will remain this: (1) Title VII protects males from employment discrimination for being male; (2) Title VII protects females from employment discrimination for being female; (3) Title VII doesn’t protect the transition from, or actions associated with pretending to be, one or the other.
Accordingly, the impact of Holder’s move probably won’t be terribly significant. Indeed, it feels more like a gesture than a transforming event, at least in the short term.
Nonetheless, Holder’s move constitutes more than a “micro-aggression” against our system of government. It’s another attempt at executive usurpation of Congress’ role. As Adams concludes:
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.