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Should EEOC Have A Special Counsel For Transgender Rights?

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Here The Agency’s Lawyer Disagrees With The Client; Yes, There’s Precedent 

WASHINGTON, D.C. (November 14, 2017) –  The Department of Justice [DOJ] has just told the U.S. Supreme Court, in a transgender discrimination cases brought by the Equal Employment Opportunity Commission [EEOC], that transgender workers are not protected from sex discrimination under Title VII of the Civil Rights Act because the word “sex” refers to and is based upon anatomy and not feelings.

However, it made that representation to the Court on behalf of the EEOC which has taken the directly contrary position that transgender employees are protected by that statute from discrimination because “sex” includes sexual identity, and is not limited to the employee’s genital anatomy.

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This raises several important legal issues for the EEOC and for courts reviewing its cases involving transgender employees, says public interest law professor John Banzhaf, who has supported the rights of transgender people, and won over 100 discrimination legal actions.

In most situations a lawyer is required to represent the position of his client, and can be fired and/or sanctioned if he refuses to do so.

But traditionally the DOJ has represented the EEOC in court, and is now insisting on asserting a legal position that the agency has strongly rejected.

This would be like a lawyer representing a criminal defendant who wants to argue that he is not guilty because he acted in self defense, but his lawyer insists that he killed without any justification and not in self defense, but he might not be guilty by reason of insanity, suggests Banzhaf.

While it may be reasonable for DOJ to represent other agencies within the executive branch - because they are all directly subject to the will of the president, and he can dictate their legal positions - the EEOC is an independent agency which Congress established so that it would not be under the control of the president.

So one concern is whether DOJ should be permitted to tell the Supreme Court that the EEOC does not support or recognize transgender rights regarding employment, when it fact it vehemently does.

If DOJ lawyers continue to represent the EEOC in the case, there would naturally be a concern that the EEOC's position in favor of transgender rights might not be heard - much less argued forcefully and vigorously - so the need for another lawyer to represent and argue that position might seem necessary.

Fortunately, there is precedent for dealing with just such a situation.

In a case before the Supreme Court over the issue of whether the Internal Revenue Service [IRS] should deny tax exempt status to Bob Jones University because of its racially discriminatory policies, the administration abruptly decided to side with the University, and argue that the IRS lacked that power.

To represent the IRS, and argue to the Court that the IRS did possess this authority, the Justices named William T. Coleman Jr., a well-known Washington lawyer, as a ''friend of the court' - a kind of special counsel.

He thus argued the position against granting tax exemptions which the Government had refused to accept.  His argument on behalf of the agency-client, which the DOJ had abandoned, was successful.

Another very important legal issue which arises from the split between the DOJ and the EEOC is created by what is known as the Chevron doctrine.  Under this rule, courts must accept the interpretation of a statutory term adopted by agency unless congressional intent is crystal clear.

But here, while it can be argued that the Justices must follow the interpretation of "sex" adopted by the EEOC because it is the agency charged by law with enforcing the statute, others could argue that Chevron deference must be given to the official position of the agency as represented to the Court by DOJ.

Whichever agency's interpretation [IRS or DOJ] must be given deference may well decide the case, because the Chevron doctrine severely limits the power of judges to do their own legal analyses, and to determine for themselves the meaning of statutory terms once they have been officially interpreted by the agency.

http://banzhaf.net/ jbanzhaf3ATgmail.com  @profbanzhaf

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