“Unfortunately, there is not a high wall between law and politics sometimes. That’s the case on both sides here,” said Michael Harper, a professor of law at Boston University. “This is a question of statutory interpretation. … Whether the statute should [prohibit LGBT discrimination] and whether the statute does are two different questions.”
LGBT-rights advocates argue that DOJ-style reasoning is straightforwardly incorrect and fundamentally grounded in prejudice. When the Zarda brief came out, the Human Rights Campaign called it “a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically driven and legally specious result.” Former Attorney General Eric Holder weighed in on Twitter:
Trump team within 24 hours reverses Obama DOJ positions for gays seeking employment and trans people seeking to serve. This is 2017 not 1617
— Eric Holder (@EricHolder) July 27, 2017
But according to Harper, the law is not so settled. This “is a fine legal brief,” he said. “It makes good legal arguments.” When lawmakers passed Title VII in 1964, they weren’t thinking of sexual orientation, the DOJ brief argues. Until very recently, courts of appeal and the EEOC agreed. Efforts to pass explicit protections for gay, lesbian, and bisexual workers have also always failed in Congress, effectively ratifying legislators’ intent to keep the law the way it is. “One can take this position … without being bigoted or prejudiced,” Harper said.
While politics might have motivated the arguments in the Trump administration’s brief—they “play to the political beliefs, and I would say prejudice, of their base,” Harper said—“that doesn’t make them bad legal arguments.”
Levitt, who previously led the Department of Justice’s efforts on workplace discrimination as a deputy-assistant attorney general in its civil-rights division, disagreed.
“It is not a crazy liberal [argument] … to say that what the words of the statute mean aren’t bound to what was in the heads of the legislature that passed it,” he said. While the sex-discrimination issue is part of an important debate about administrative law, it’s not an option to put off interpreting and enforcing statutes while waiting on Congress to pass clearer legislation, he said: “You have to interpret statutes somehow.”
The downside of that approach is that elections regularly boot parties out of power. If one administration has taken an aggressive stance on a controversial issue, it’s inevitable that their opponents will reverse course when they get in office. “There are limits, when the administration changes, to what the executive can do without Congress,” said Harper. “To have secure change, you have to have congressionally passed legislation.” Even though the circumstances of the DOJ’s brief were unusual, the context was unsurprising. “I can’t say that I’m altogether shocked,” said Gupta. “I’m disappointed, obviously.”