Bench Memos

Law & the Courts

Obama Administration’s Outrageous War on North Carolina—Part 5 (Legal Citations)

See Parts 1, 2, 3, and 4

Vanita Gupta, author of the DOJ letter threatening North Carolina governor Pat McCrory, did toss in two citations to legal decisions. But neither decision helps her legal claim, and the second in fact would defeat it.

First, Gupta observes that the EEOC recently adopted, in Lusardi v. Dep’t of the Army, exactly the position that the Obama administration is asserting: that (in the words of the EEOC) “denying transgender individuals access to a restroom consistent with gender identity discriminates on the basis of sex in violation of Title VII.” And so it did—but not because any plausible reading of Title VII could actually support that elementary misunderstanding of what discrimination on the basis of gender identity means.

As I pointed out in my critique of that sharply divided April Fool’s decision last year, the EEOC majority maintained that “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.” (Emphasis in original.) Never mind that the record in question indicated that the complainant, who recently changed his legal name from Todd Lusardi to Tamara Lusardi, wasn’t arbitrarily “assigned the sex of male at birth” but is in fact genetically male and, yes, even retains (or, at least at the time of the events in question, retained) male genitalia. Anyone who thinks that “there is no cause to question” that Lusardi “is female” is an idiot or a lunatic—or a transgender ideologue.

So, yes, the same sort of “fringe leftists” who run DOJ’s Civil Rights Division also have operating control of the EEOC. That won’t be news to anyone who’s been following the two entities.

Second, Gupta states that “in interpreting the analogous sex discrimination provision of Title IX,” a Fourth Circuit panel recently held in G.G. v. Gloucester Co. School Board that the “Department of Education’s guidance that educational institutions ‘generally must treat transgender students consistent with their gender identity’ is entitled to ‘controlling weight’ under Auer v. Robbins.”

Gupta’s statement is confused because (as I explain in Part 5 of my series of posts on the G.G. ruling) the panel majority never actually interpreted what Title IX means.

More significantly, the panel majority’s analysis in G.G. cuts sharply against her legal claim for two reasons. First, Gupta’s own informal interpretation of the statutory language of Title VII, unlike the Education Department’s interpretation of its own regulation, has no plausible claim to judicial deference. Second, the Fourth Circuit made clear that the word “sex” in that 1975 regulation was best read as referring to biological sex and that it was only under Auer’s standard of super-deference that it would allow the Department to apply a different meaning to its regulation. (See point 4 here.) The very reasons that the Fourth Circuit offered for why the best reading of the word “sex” meant biological sex apply equally to the text of Title VII. So Gupta’s claim about Title VII loses under the Fourth Circuit’s analysis in G.G. 

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