Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 20

(Yong hian Lim/Dreamstime)

1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine. To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy.

2016—In EEOC v. Deluxe Financial Services, a federal district judge in Minnesota enters a consent decree on the EEOC’s claim that the employer of a man who identifies as a woman discriminated against him on the basis of sex. The consent decree awards $115,000 and other relief to the employee.

The consent decree reflects the EEOC’s—and, it would seem, the judge’s—embrace of the transgender ideology. Thus, for example, the judge recites in the first paragraph the EEOC’s allegation that Deluxe Financial subjected the employee to mistreatment “because of her sex, including because [the employee] is a woman who is transgender” and because of Deluxe Financial’s “sex or gender-based expectations or stereotypes related to individuals assigned the male sex at birth.”

The consent decree also reflects the EEOC’s, and the judge’s, embrace of the claim that discrimination on the basis of sex includes discrimination on the basis of “transgender status.” (The EEOC identifies this claim as “a top [EEOC] priority.”) So much for the transgender insistence, in other contexts, that the concept of gender is fundamentally different from the concept of sex. And, on this understanding of Title VII, wouldn’t an employer also be discriminating on the basis of sex by forbidding men who identify as men from using the women’s restroom while allowing men who identify as women to do so?

The consent decree also illustrates the EEOC’s ability to extract settlements from employers who don’t have the stomach or resources to defend themselves against a federal agency that won’t let the costs of litigation impair its pursuit of its ideological agenda.

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