The New Reality

On the second day of Jeff Sessions the DoJ filed notice in the Fifth Circuit that it is withdrawing its request that a nationwide injunction against pro-transgender policies be limited to the states that sought the injunction.

Then, in a joint request with the states challenging the policy, the states and the Justice Department both requested that the oral arguments on that issue be removed from the court’s calendar.

The parties are currently considering how best to proceed in this appeal.

The argument, advanced by the Equal Employment Opportunity Commission and later by the Justice Department and other federal agencies, is that existing civil rights law bans on sex discrimination should be read to include a ban on anti-transgender discrimination because it is a type of sex discrimination.

Despite the Justice Department move, the EEOC — an independent federal agency — appeared to be keeping its fight for the pro-transgender interpretation of the law proceeding in court.

This was unexpected after Trump appointed a new acting chair of the agency.

The EEOC filed a brief yesterday in a case in the Sixth Circuit:

Title VII’s prohibition on discrimination ‘because of … sex’ encompasses discrimination based on transgender status and/or transitioning. This conclusion is based on the text of Title VII, as well as decisions of the Supreme Court and this Court that have long recognized that Title VII forbids gender from playing a role in employment decisions.

Notably, the appeal — in a case brought by the EEOC against a funeral home that it alleges discriminated against an employee because she is transgender — also makes the argument that the Religious Freedom Restoration Act does not provide a defense to the funeral home’s actions here.

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