Will Trump Administration Retreat on LGBT Protections?

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By Kevin McGowan

The Justice Department’s decision to step away from a court battle to protect the bathroom access rights of transgender students is stoking fears among civil rights advocates that the Trump administration plans a broad retreat on LGBT protections.

The DOJ recently abandoned its bid to stay a court order that blocks federal agency guidelines on transgender students’ bathroom access.

That action, coming less than two days after Attorney General Jeff Sessions was confirmed and sworn in, is “a clear signal” the Justice Department is backing away from “equality,” said Sasha Buchert, a staff attorney and policy counsel for the Transgender Law Center in Oakland, Calif.

The department’s decision sends a “terrible message” to transgender public school students about their legal protections, Buchert told Bloomberg BNA Feb. 13.

It suggests the Justice Department might not support the Education Department’s guidelines in a pending U.S. Supreme Court case. Advocates for LGBT rights also worry the Trump administration could push for broad religious exemptions to current federal protections against sexual orientation and gender identity discrimination.

The Justice Department declined to comment on its actions in the U.S. Court of Appeals for the Fifth Circuit.

A federal district court in Texas last year enjoined the Education Department’s guidelines that interpret Title IX of the 1972 Education Amendments to mean public schools must allow transgender students to use the bathrooms consistent with their gender identities.

The Justice Department in November asked the Fifth Circuit to stay the district court’s nationwide preliminary injunction while the government appealed. The department now no longer seeks a stay, but its appeal remains pending.

A Texas state spokesman applauded the DOJ’s decision.

“The Obama administration rewrote the law and tried to force public schools to fall in line with its social agenda by threatening to take away their funding,” Marc Rylander, director of communications for the Texas solicitor general, said in a Feb. 13 statement. “We are pleased that the injunction still stands.”

High Court Argument Pending

The Justice Department’s timing heightens LGBT advocates’ concerns about the Trump administration’s position in an upcoming U.S. Supreme Court case involving a Virginia school district’s challenge to the same Education Department guidelines.

The department has yet to file its brief in that case.

The justices are reviewing a U.S. Court of Appeals for the Fourth Circuit decision that upheld the Education Department’s interpretation of “sex” discrimination to include bias based on transgender status. Oral argument is scheduled for March 28.

It’s “deeply concerning” that prior to filing a Supreme Court brief, the Justice Department is “kind of showing its hand” regarding its view of the Education Department guidelines, said Sarah Warbelow, legal director of the Human Rights Campaign, a lesbian, gay, bisexual and transgender rights advocacy group in Washington.

The department’s action in the Fifth Circuit suggests it won’t be showing “robust support” for Gavin Grimm, the transgender student whose case spurred the showdown in the Supreme Court, Warbelow told Bloomberg BNA Feb. 14.

The American Civil Liberties Union is representing Grimm, so the Justice Department would be participating as a friend of the court before the Supreme Court.

It is possible the Justice Department wouldn’t file a Supreme Court brief. But it would be “unusual” for the department “not to weigh in,” because Grimm’s case raises the issues of judicial deference to an agency’s interpretation of its own regulations and how to define “sex” under federal civil rights laws, Warbelow said.

Advocates also are concerned about the fate of President Barack Obama’s July 2014 executive order and the Labor Department rule that prohibit federal contractors from discriminating based on sexual orientation or gender identity.

Obama also ordered federal agencies, which already banned sexual orientation bias in employment, not to discriminate based on gender identity.

President Donald J. Trump on Jan. 31 indicated he wouldn’t seek to rescind the Obama executive order, which amended Exec. Order 11,246, the long-standing directive that bars contractors from discriminating on the basis of race, color, religion, sex or national origin.

Religious Exception to LGBT Protections?

But, at the same time, a “leaked version” of a draft Trump executive order shows the administration might seek to “undermine” the legal rights of LGBT individuals “across the board,” Warbelow said.

That draft would allow individuals, businesses and other organizations that work for or with the federal government to assert their “purported religious beliefs” to oppose LGBT protections, Warbelow said.

“We have every reason to believe” that draft proposal “still is being floated and could be released at any time,” she said.

Trump has “left the door open” for a religious belief exception to Obama’s executive order prohibiting discrimination based on sexual orientation and gender identity, said Michelle Phillips, a principal with Jackson Lewis in White Plains, N.Y., who advises employers on LGBT issues in the workplace.

The leaked draft proposal would allow a “carve-out” to contractors, companies and others with sincerely-held religious objections to aspects of the Obama administration’s LGBT protections, Phillips told Bloomberg BNA Feb. 13. The question is how broad the religious objector carve-out would be, she said.

Still, “it would take time” for Trump to dismantle what the Obama administration did to advance LGBT protections under federal law, Phillips said.

No Changes in EEOC’s Stance

Meanwhile, the Equal Employment Opportunity Commission shows no sign of backing away from its position that Title VII of the 1964 Civil Rights Act’s ban on sex bias in the workplace proscribes discrimination based on transgender status or sexual orientation.

The EEOC Feb. 10 filed a brief urging the U.S. Court of Appeals for the Sixth Circuit to endorse the agency’s view that discrimination based on a worker’s gender identity must be deemed sex discrimination under Title VII.

A district court dismissed the EEOC’s claims against a Michigan funeral home that fired a longtime funeral director after she said she was transitioning from male to female. The lower court said the Religious Freedom Restoration Act barred the EEOC’s Title VII claims against the funeral home, whose owner expressed religious objections to a biological male employee presenting as a woman in the workplace.

On appeal, the EEOC said nothing in Title VII “provides an exception by which a for-profit employer may deprive an employee of her statutorily-protected right to be free from sex discrimination because of her employer’s religious beliefs.”

The Religious Freedom Restoration Act, which precludes government actions that “substantially burden” a person’s sincerely held religious beliefs, can’t override an employee’s “Title VII right to be free of workplace discrimination,” the EEOC said.

Gradual Shift at the EEOC?

The EEOC differs from the Justice Department and other Cabinet agencies because the commission members’ staggered four-year terms give it “a much greater degree of independence” from the administration, said Warbelow of the Human Rights Campaign.

The EEOC is “intended to provide a little bit of a check” on the administration, she said.

But Trump will get to nominate a new EEOC general counsel and two new commission members this year. The general counsel’s post and one seat on the five-member commission already are vacant. The second EEOC seat will become available after Commissioner Jenny Yang (D)'s term expires July 1.

Changes in the EEOC’s approach to transgender bias issues may be coming, but they will be “more gradual” than those at the Justice Department, Phillips said.

The EEOC won’t necessarily reverse its position on gender identity and sexual orientation bias under Title VII, but it might take less of “an affirmative stance,” Phillips said.

A Justice Department interpretation that Title IX doesn’t ban gender identity discrimination wouldn’t require the EEOC to change its Title VII interpretation, Warbelow said.

The courts would have to rule in favor of the DOJ’s new interpretation of Title IX or Congress would have to amend the law to codify that approach, she said.

As long as the EEOC prevails in the courts on its interpretation of Title VII, there’s “no need” for the commission to change its position on what “sex” discrimination means, Warbelow said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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