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Analysis: Trump Appointments Could Derail LGBTQ Employment Rights

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Analysis: Trump Appointments Could Derail LGBTQ Employment Rights

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Two Trump nominations for the Equal Employment Opportunity Commission (EEOC) advanced out of committee and now await Senate confirmation. Attorney Janet Dhillon and Iraq War veteran Daniel Gade are Trump's first appointments to the EEOC, an independent federal agency tasked with enforcing federal anti-discrimination law.

If confirmed, Dhillon will take over as chair from Victoria Lipnic, and Gade will fill a spot vacant since January. Both Dhillon and Gade would serve 5-year terms and tip the balance of the EEOC decidedly to the right.

In 2015, the EEOC ruled Title VII of the Civil Rights Act of 1964, which "prohibits employment discrimination based on race, color, religion, sex and national origin," also prohibits discrimination on the basis of sexual orientation. Since then, the EEOC has weighed in on several cases on behalf of lesbian and gay individuals alleging discrimination.

One example is the case of educator Kimberly Hively, who said she was denied a promotion and full-time employment because of her sexual orientation. The U.S. Court of Appeals for the Seventh Circuit agreed with the EEOC's interpretation of Title VII and set a major legal precedent.

The EEOC has also backed transgender individuals who claim discrimination on the basis of their gender identity or expression under Title VII. In the case of EEOC v. R.G. & G.R. Harris Funeral Homes, the EEOC brought suit against a private employer on behalf of a transgender woman, Aimee Stevens, who was fired by her employer after she began her transition.

"The EEOC can really shape how discrimination laws are interpreted through its understanding of and application of the law," Melissa Hart, a professor of law at the University of Colorado, told NBC News.

The EEOC's "shift to recognize protections for the LGBTQ community … was responsive to what was happening in the courts in some ways, but [it was] also a significant change that pushed the courts to reexamine the decisions they were making," Hart added.

The Department of Justice (DOJ) under Jeff Sessions has taken a starkly different view of the scope of Title VII. The DOJ submitted an unsolicited brief in the case of Zarda v. Altitude Express arguing that sexual orientation discrimination is not prohibited under Title VII.

Then, on October 4, the DOJ went after gender-identity discrimination when Sessions issued a memorandum stating, "Title VII does not prohibit discrimination based on gender identity per se."

In September, both Dhillon and Gade gave testimony before the Senate stating they are personally opposed to workplace discrimination based on sexual orientation and gender identity. However, they would not say whether they would support the EEOC's current position that such discrimination is against federal civil rights law.

"The current law is in flux," Dhillon said during her testimony. "We now have a split in the circuits, and we also have two agencies that have taken differing views of the same text." She implied a "legislative solution" would be optimal to resolve the issue.

In response to further questions from Sen. Tammy Baldwin, Democrat of Wisconsin, on the split between the EEOC and the DOJ on the scope of Title VII, Dhillon said, "While the EEOC has jurisdiction over the private workforce … the DOJ actually enforces Title VII with respect to state and local government employees. So I think it's critical that the federal government ultimately speak with one voice on how this statute is appropriately interpreted."

Dhillon's answer, according to Hart, suggested if she is confirmed, the EEOC may step back from LGBTQ-employment-rights advocacy.

Unlike other government agencies whose leadership changes with a new administration, the EEOC is an independent agency whose commissioners serve 5-year terms. Hart said this creates consistency across presidential administrations. However, Hart said she believes these new appointments to the EEOC will change the track of the organization on LGBTQ issues.

"I see every reason to believe that the new commissioners are going to change course on transgender as well as sexual orientation discrimination," Hart said. "I have no doubt that the administration, when it chose them, was aware that [Title VII] is one of the areas where the EEOC has made significant progress. Given that the Attorney General has taken a position contrary to that, I have no doubt that these appointments were made with an eye toward revising the EEOC's most recent view."

Image: President George W. Bush shakes the Capt. Daniel Gade

Sharon McGowan, director of strategy at LGBTQ legal group Lambda Legal, said she is "concerned" about the consequences of Trump's EEOC appointments. Referencing their Senate testimony, she said it was disappointing to see EEOC nominees "lukewarm at best" toward using federal non-discrimination law to protect LGBTQ employees.

"This is an independent agency charged with bringing equal employment opportunities to the citizens of this county," McGowan said. She said the new composition of the EEOC could be a "huge loss" for LGBTQ advocates and could mean "pressure to withdraw from cases and not move forward with cases."

Lambda Legal has asked the Supreme Court to hear the case of Jameka Evans, a former employee of Georgia General Hospital allegedly fired for being a lesbian and gender-nonconforming. McGowan said this case is one where we could potentially see the impact of Trump's EEOC appointments.

McGowan explained that only one amicus brief (a document providing a legal opinion on the case at hand) can be submitted by the government in a Supreme Court case, the content of which will be determined by the Solicitor General. McGowan said a brief would almost certainly reflect the Title VII position the DOJ has taken.

"The government has shown its hand in Zarda [v. Altitude Express]," McGowan said. "They will urge the court to cut lesbian and gay people out. To have that brief filed by the Department of Justice stings."

However, McGowan said, "If the Supreme Court doesn't take the Evans case, leadership in the EEOC will be important" as the issue will be returned to the circuit courts for evaluation, and the EEOC will be able to weigh in on its own.

Evans' case is somewhat unique as it touches on whether Title VII encompasses both sexual orientation and gender expression.

"If the Supreme Court doesn't take the case, then it'll go back to the district court … to hash out whether Jameka can prove that her gender-nonconformity (as opposed to her sexual orientation per se) was the reason why her employer discriminated against her," McGowan explained.

Looking at the EEOC shift in a broader context, Hart said it is yet another example of the difficulty LGBTQ advocates are having under the Trump administration.

"With regard to every area where Barack Obama sought to protect the rights of LGBT people, this administration has been clear that is it taking the opposite position," she said. "It's another example of elections having consequences."

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