NY Times by Linda Greenhouse 8/29/2019
The Trump administration is moving on two fronts to undo civil rights protections.The Trump administration is so busy trying to undo longstanding civil rights protections and blocking new ones that it is stumbling over its own feet. Those twin goals have collided in recent days in a way that’s worth unpacking for what it reveals about the upside-down civil rights era we seem to be entering.
On Oct. 8, the second day of its new term, the Supreme Court will hear arguments on whether Title VII of the Civil Rights Act of 1964 — the basic statutory protection against discrimination in employment — should be understood to prohibit discrimination against gay men, lesbians and transgender individuals. The administration, rejecting the view of the Equal Employment Opportunity Commission, has filed briefs in the last few days (which lawyers for the E.E.O.C. refused to sign) arguing that the answer is no.
The brief in the transgender discrimination case and in the gay rights case both make the same argument: that Congress didn’t include either category when it listed race, religion, national origin and sex as the characteristics it intended to protect, and it is up to Congress, and not the courts, to add gay and transgender to the list if Congress so desires. (The argument on the other side is that discrimination on the basis of sexual orientation or gender identity is logically understood to be discrimination on the basis of sex — no matter what Congress thought it was doing back when same-sex relations were illegal and no one talked about gender identity.)
Both government briefs point the justices to the same example of what the administration’s lawyers say is proper judicial deference to Congress: the Fair Housing Act of 1968, which prohibits the denial of housing opportunities on the basis of race, religion and national origin. An interpretive question about the Fair Housing Act has been whether it prohibits only intentional acts of discrimination, or whether violations can be proven by showing that actions that appear neutral on their face — a zoning policy or mortgage practice, for example — have a disparate impact on members of one of the protected groups.
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Whether the housing act bars disparate-impact discrimination had been widely litigated by 1988, when Congress amended the law in some substantial ways. Every federal appeals court to have addressed the question, nine of them by then, interpreted the law to encompass disparate claims. Congress left the issue alone.
The analogy that the administration draws from that episode is to Title VII, which Congress substantially amended in 1991 to restore protections that a newly conservative Supreme Court had undermined in a series of decisions in 1989. It is “especially likely,†the Trump administration contends, that the 1991 Congress knew that no judicial decisions had read protections for gay or transgender people into Title VII, and yet it did not choose to add those protections. Consequently, the court should defer to Congress’s choice.
More:
https://www.nytimes.com/2019/08/29/opinion/trump-civil-rights.html
