Bench Memos

Eric Holder’s Transgendered Mutilation of Title VII

In a remarkable action yesterday, Attorney General Eric Holder declared that 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,” and that DOJ will henceforth adopt that reading.

In a fog of wordplay divorced from any plausible account of the original meaning of Title VII, 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.” (Emphasis added.)

Holder’s reference to “a different sex” is badly confused and odd. A man who identifies as a woman—yes, even a man who butchers and drugs himself to appear more like 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 states that the federal government’s “approach to this issue has … evolved over time.” (Emphasis added.) That’s his way of acknowledging that his position is directly contrary to the position that DOJ had previously taken. As Christian Adams points out, Holder is instead following the dubious lead of the reckless adventurists at the EEOC. And while Holder states that “courts have reached varying conclusions” on the issue, his citations reveal that he’s adopting the position taken by a federal district judge over that taken by a federal court of appeals.

One controversy that long divided advocates of the bill titled the Employment Non-Discrimination Act, or ENDA, was whether the bill’s prohibitions on discrimination on the basis of sexual orientation should be extended to prohibit discrimination on the basis of gender identity. Under Holder’s cross-dressing reading of Title VII, that controversy was pointless because Title VII’s “plain meaning” already bars discrimination based on gender identity. Indeed, if Title VII broadly bars discrimination “founded on sex-based considerations,” I don’t see why Holder isn’t also contending that Title VII’s plain meaning bars discrimination based on sexual orientation. But that may just be the next lawless surprise in the offing.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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