In a memorandum, Obama Attorney General Eric Holder proclaimed that the Department of Justice will consider Title VII of the 1964 Civil Rights Act as including trangedered individuals as well as those with gender identity issues (e.g. transvestites). Holder rationalized that the federal government's approach to the issue had evolved over time. So even though such classes were not contemplated by Congress when the law was enacted, they ought to be covered despite the plain text reading and 50 years of DOJ precedent. Or it should be affirmatively decided by the highest court in the land.
Holder invoked the logic of Oncale v. Sundowner Offshore Servs. (1978), a Supreme Court decision which purports that statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils". A complication with relying upon this language as it focuses on acts which applies to discrimination on women and men. Holder's ukase is that it establishes new classes of Civil Rights coverage, namely for cross-dressers as well as transgendered people. Such unilateral Administrative action was anticipated by Air Force Secretary Deborah Lee James.
However, Congress did not pass the Employers Non-Discrimination Act (ENDA) because of concerns in the House whether the bills prohibitions on discrimination on sexual orientation would also include gender identity. ENDA did not pass Congress, but no matter for the Obama Administration to fashion its own law.
Although this holding supposedly only extends to the Federal Government, the limited scope of the Federal Gay Marriage applicability in U.S. v. Windsor (2013) was not respected. In addition, consider how Attorney General Holder's logic of juridical evolution could be liberally applied.
Does America still have the rule of law or the rule of men? This is a hard question to give a straight answer.
h/t: Michael Ramirez
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