Right wing politicians and commentators have trotted out all sorts of reasons why discriminating against transgender people should be perfectly legal. The problem is, absolutely none of them stand up to any sort of scrutiny. Or rational thought for that matter.
- Right Wing Talking Point: Including transgender people under Title VII and IX is novel.
Nope. Federal Courts have been interpreting Title IX to include transgender since 1997 in the case of Miles vs. New York University. Similarly, in 2000 Federal Courts began considering Title VII to include transgender people in the case of Rosa v. Park West Bank. Since 2004 and the 6th Circuit decision in Smith v. Barnes nearly every employment decision has ruled that transgender people are protected by Title VII, and essentially unanimously since 2008. This is why none of the cases cited in North Carolina’s lawsuit against the federal government cite a post-2008 court ruling that Title VII doesn’t protect transgender people.
However, the EEOC helpfully (trolled) provided a list of dozens of rulings since 2008 supporting Title VII and IX p
- Right Wing Talking Point: It wasn’t the original intent of lawmakers to protect transgender people when they wrote Title VII and Title IX.
This is both irrelevant and disingenuous. The Supreme Court decided in 1998’s Oncale v. Sundowner Offsore that protections under “sex” in Title VII of the 1964 Civil Rights Act must be considered more broadly than just the original intent of the legislators who wrote it. It can’t be argued that this was some “liberal overreach by unelected activist judges,” either; the late Antonin Scalia wrote the decision of a unanimous court, and Justice Thomas concurred.
- Right Wing Talking Point: Congress should settle the issue.
North Carolina Governor Pat McCrory demanded that Congress “bring clarity” to the issue of Title VII and Title IX as they relate to LGBT people.
Is he talking about the same Congress that rarely can be bothered to pass a budget these days? The body which has been setting records for lack of productivity for the past 10 years? Or is he ignoring the fact that there’s actually a bill (the Equality Act) to do exactly that which can’t even get a hearing in committee.
McCrory’s complimentary copy of Waiting for Godot, will arrive in the mail shortly.
- Right Wing Talking Point: This was overreach
The “Dear Colleague” letter is not “overreach” either. It is guidance clarifying interpretation of Title IX and does not carry the force or effect of law, which is explicitly stated in it. The Department of Education and Department of Justice issued the letter as guidance because some schools (and elected officials) have questioned whether Title IX covers transgender people. Courts defer to agency interpretations of unclear laws which they are responsible for enforcing. This is known as the Auer doctrine, and based on the Supreme Court’s 1997 Auer v. Robbins decision. As such, the “Dear Colleague” letter is guidance based on the case law described above, some of which pre-dates the Obama Administration by over a decade.
McCrory asked for clarification, and got it from the only agencies capable of actually doing anything. He just didn’t like the answer.