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DoJ gets one right, decides not to appeal Schroer decision | Hunter of Justice

DoJ gets one right, decides not to appeal Schroer decision

by on July 1, 2009  •  In Employment law, Transgender

In a good but overdetermined move, the Justice Department has announced that it will not appeal a district court's ruling that discrimination based on gender identity is sex discrimination and therefore invalid under Title VII. The case, litigated by the ACLU LGBT Rights Project, is Schroer v. Billington, 577 F.Supp.2d 293. For more background, see the ACLU's information page about the case and previous posts.

This is the case that I have been saying for months would be an outrage if Justice decided to appeal.  Unlike cases involving DoMA, it does not call into question the validity of any federal statute. From the defendant's point of view, it finds that a particular employment decision was unlawful, and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).

In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise. And the community outrage over the Smelt brief surely eliminated whatever doubt there may have been about pursuing the appeal. So, good for the Justice Department; they did the right thing.

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2 Responses to DoJ gets one right, decides not to appeal Schroer decision

  1. Darren Hutchinson July 1, 2009 at 3:12 PM

    “good but overdetermined” — Yes!

  2. KipEsquire July 1, 2009 at 5:19 PM

    “Unlike cases involving DoMA, it does not call into question the validity of any federal statute.”

    Exactly the point.

    The Constitution, one ought take five seconds to recall, does not require that there even be a DOJ, let alone that the DOJ must actually do anything.

    The Obama DOJ is defending DOMA because the Obama DOJ is government, and government always defends its authority to expand its own power. Always. Not because it has to, but because it wants to.

    That, and that alone, is the true distinction between the two cases and the disparate DOJ responses to them.

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