On Jan. 31, the Equal Employment Opportunity Commission (EEOC) staff received a new directive from its Trump-appointed acting chair. The directive instructed staff to halt the processing of EEOC charges alleging sexual orientation discrimination or discrimination based on gender identity and that all charges so alleging should be sent to national headquarters for review to make sure they “comply with applicable executive orders to the fullest extent possible.”
This instruction flies in the face of the United States Supreme Court decision Bostock v. Clayton County, a 2020 6-3 majority decision penned by Trump-appointed Justice Neil M. Gorsuch, in which the Supreme Court found that discrimination based on sexual orientation or based on gender identity is illegal sex discrimination under Title VII. It is unconstitutional to defer or delay these charges simply because they are brought by employees this administration prefers not to protect. The law as stated by the Supreme Court requires that these employees be treated fairly and equally. The charges should be processed timely, just as with any other charge.
Credit: Handout
Credit: Handout
The president of the United States does not have the authority to overrule the Supreme Court of the United States by executive order or otherwise. It is a bedrock principle of our constitutional democracy that there are three coequal branches of government, three coequal branches: the administrative branch, the legislative branch. When President Donald Trump seeks to overrule a Supreme Court case, he is ignoring our constitutional democracy and, instead, making a power grab, overreaching his authority. It is up to the officials at the EEOC to ignore this illegal directive or challenge this directive in a court of law. To do otherwise would be to not only bow to an illegal mandate but also to ignore illegal sexual orientation or gender-based discrimination, which has been recognized as actionable by the United States Supreme Court.
Separate and apart from the illegality of a new administration’s directive, is the cruel marginalization of two groups of people who, in recent times, were recognized as equal under the laws of this country. By directing the EEOC to delay or defer the processing of charges from these two groups, the Trump administration is sending a not-very subtle message to employers: discriminate at will against gay and transgender employees. Of course, the other side of that coin is that gay and transgender employees will live in fear in the workplace, operating with the belief that they are no longer protected by Title VII.
This marginalization will not only have a financial impact against those employees who find themselves fired, demoted, harassed or not promoted, but it also will have a substantial emotional impact on them, as they live in fear of workplace discrimination, which, for all intents and purposes, appears to be authorized by the president and his new administration. In addition to this authorization to permit the marginalization of gay and transgender people in the workplace, it appears that the Trump administration is prepared to do so in the military. Executive Order 14183, captioned “Prioritizing Military Excellence and Readiness,” rescinds Executive Order 14004, which permits military service regardless of gender identity. Again, Trump chose to marginalize this minority group. It is an open question as to whether under Bostock such marginalization is illegal under Title VII.
More broadly speaking, it appears the Trump administration is promulgating a rash of illegal executive orders that fly in the face of the Constitution and other well-established laws. This appears to be an effort to flood our country with illegal orders to overwhelm those who would oppose such actions and fracture and destroy the rich and diverse human family in our country. Other examples of this include his executive order outlawing birthright citizenship (a clear violation of the 14th Amendment, already struck down by one court), and the sudden termination of numerous federal employees in violation of civil service laws.
In short, the Trump administration is rushing the electorate with a series of orders that essentially say, “This is the law because I say so.” It is not. Trump does not have that authority. We are still a government by and for the people, governed by a Constitution that recognizes three distinct branches of government, each designed to keep the other in check.
These orders and other efforts to overstep the Constitution must be opposed vigorously by litigation or legislation. This needs to happen immediately lest we lose our republic to tyranny.
Ed Buckley is a founding partner at the law firm Buckley Bala Wilson Mew LLC and a leading expert on legal issues concerning civil rights and the LGBTQ+ community. Buckley and his law partner, Tow Mew, were involved in the litigation of the landmark 2020 U.S. Supreme Court case Bostock v. Clayton County, which determined that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity, securing crucial workplace protections for LGBTQ+ employees.
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