In 2009, President Obama nominated Chai Feldblum, a leading gay rights activist, for a spot on the five-person Equal Employment Commission. Her nomination inflamed social conservatives. As a result, in March 2010, Obama placed her on the EEOC without Senate confirmation, through a recess appointment. In December of that year, the Senate finally confirmed her for a term ending in 2013.
In 2013, the Senate confirmed her for a second term. This time, Harry Reid relied on the abolition of the filibuster for presidential nominees, and Feldblum was approved by a vote of 54-41.
Now, Bloomberg reports (via its subscription only Daily Labor Report) that President Trump will renominate Feldblum. I find this news shocking. Given Feldblum’s history as EEOC commissioner, described in part below, I would have wagered plenty against it.
Feldblum used her position at the EEOC to promote a radical LBGT agenda. First, she succeeded in having the Commission take the position that Title VII protects gays and lesbians from employment discrimination.
There’s a good argument that gays and lesbians should have this protection as a matter of policy. However, Feldblum’s legal argument has long been rejected by the courts. As Ed Whelan wrote in 2015:
Over a period of decades, every federal courts of appeals that has addressed the question has ruled that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination. [See link for citations to decisions from seven different courts of appeals]
Next, Feldblum focused on the transgender bathroom wars. She cast the deciding vote in a case where the EEOC decided that the Department of the Army discriminated against Todd Lusardi when it denied him equal access to female restroom facilities. Feldblum and two other commissioners viewed the denial as both disparate treatment on the basis of sex and creation of a hostile work environment.
On this record, there is no cause to question that Complainant—who was assigned the sex of male at birth but identifies as female—is female.
Yes there was. According to Ed Whelan, the record indicated that the complainant, who recently had changed his legal name from Todd Lusardi to Tamara Lusardi, is genetically male and even retains (or, at least at the time of the events in question, retained) male genitalia.
Whelan also noted:
[E]ven though Lusardi did not complain about it, the EEOC [went] out of its way in a footnote to opine that his employer unlawfully deprived him of the “use of common locker and shower facilities that non-transgender employees could use.” In other words, according to the EEOC majority, it’s unlawful sex discrimination to bar a man who thinks of himself as a woman from sharing locker and shower facilities with women.
Feldblum has little more use for religious freedom than she does for biology, when it stands in the way of her radical LGBT agenda. She told NRO’s Maggie Gallagher that when religious liberty and sexual liberty conflict, “I’m having a hard time coming up with any case in which religious liberty should win.” (Later in the same interview, she said “in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner”).
The Trump administration sees it differently. For example, it took the side of Jack Phillips, the Colorado baker, in the gay wedding cake case.
In addition, the Trump Justice Department recently argued in the Second Circuit Court of Appeals that Title VII does not protect gays and lesbians from employment discrimination. In that case, the judges were treated to the curious spectacle of the EEOC taking one side and the DOJ taking the other in the same case and the same courtroom.
Again, the DOJ’s position reflected how Title VII has always been understood. The EEOC’s position reflected Chai Feldblum’s crusade to change the law.
Furthermore, President Trump opposes allowing men (biologically speaking) to use women’s restrooms and shower facilities. Indeed, his administration formally rescinded guidance issued by the Obama administration on the supposed right of transgender public school students to access to bathrooms and locker rooms used by members of the opposite sex (biologically speaking).
Why in the world as Trump re-nominated the Obama administration’s leading LGBT activist to the EEOC? To be sure, two of the five members of the EEOC must be Democrats. [Correction: the statute only requires that no more than three commissioners be of the same political party. See 42 USC 2000e-4.] But nothing requires that any of the five be hard-left Dems who push a radical LGBT agenda. There are plenty of Democrats Trump could have selected who would be fairly innocuous, at least compared to Feldblum.
Nor can it be argued that Feldblum would be innocuous because of a Republican majority on the Commission. There is no Republican majority and probably won’t be anytime soon.
At present, the EEOC consists of three Democrats and only one Republican. No Republican has been confirmed and at the rate things are going, we cannot expect a Republican majority for quite some time.
To make matters worse, Trump hasn’t nominated a General Counsel for the EEOC. The General Counsel drives the EEOC’s litigation strategy, subject to approval or disapproval by the five-member Commission. Thus, under President Trump, a left-liberal Democrat nominated by former president Obama will continue for the foreseeable future to choose which cases and legal theories he wants the EEOC to pursue, and left-liberal Democrats will continue to sign off on these cases.
The result will be that the government continues to take litigation positions inconsistent with the views of the White House and inconsistent with the views of social conservatives who consider President Trump their ally. In fact, as noted, the EEOC has taken a position inconsistent with the Justice Department’s in a real live case pending in the Second Circuit.
I assume (but don’t know) that Trump re-nominated Feldblum as part of a deal with Chuck Schumer. I can conceive of favors from Schumer that might justify another term of Feldblum. I can’t imagine Schumer granting those favors.
NOTE: I have modified this post to correct an error about the state of play regarding Republican nominees to the Commission.