by Travis Weber
October 19, 2017
When Attorney General Jeff Sessions announced that he was sending an experienced DOJ attorney to prosecute the murder of a transgendered individual in Iowa, while at the same time announcing that the DOJ would properly interpret Title VII’s prohibition on sex discrimination as not including “gender identity” or any other category, progressive activists and some media outlets were confused.
Slate called this “a move that surprised some familiar with his record on LGBTQ rights,” and The New York Times observed, “[i]n taking th[is] step, Mr. Sessions, a staunch conservative, is sending a signal that he has made a priority of fighting violence against transgender people individually, even as he has rolled back legal protections for them collectively.”
Yet the real story here is how media and activists are puzzled by the supposed “contradiction” in these steps—a contradiction which only exists if one is looking at law as an activist does—as a means to an end. All AG Sessions is doing in both of these situations is simply enforcing the laws on the books.
The reason for the confusion in some quarters is that the modern progressive activist, who looks at law as nothing more than a tool to accomplish policy preferences, cannot conceive of the idea of an attorney general and DOJ that would actually fairly and faithfully apply the laws that currently exist—even if such application cuts across the usual social and political dividing lines. They can’t conceive of those in power actually looking at their job objectively and simply enforcing the law, regardless of whether they agree with it as a policy matter. Yet a constitutional conservative, who understands the Constitution as the Framers did, looks at this as the only right approach.
The fact that these two decisions by AG Sessions cut across social and political lines thus causes confusion in the activist’s mind.
Regardless of one’s policy position on transgenderism, federal criminal law does currently consider murders of individuals which the perpetrator allegedly targets because of their perceived or actual gender identity to be a separate criminal offense. Regardless of Jeff Sessions’ personal views on gender identity, he is bound to enforce that law. That’s what he is doing in this case.
Meanwhile, regardless of one’s policy position on transgenderism, federal employment law does currently consider sex discrimination to be prohibited—and only sex discrimination. Unlike the federal criminal law, Title VII does not list “gender identity” as a separate class. Thus AG Sessions will enforce the law as written—prohibiting sex discrimination—and nothing more.
This is in stark contrast to the previous administration’s approach, which cherry-picked which laws to enforce and which laws to ignore based on their political ideology. Under AG Holder, the Obama administration unilaterally decided to include gender identity in sex discrimination protections. Now, all AG Sessions is doing is returning us to the status quo.
This is only remarkable if one views everything—including the law—through an ideological lens out of which one must achieve uniform policy results. The rule of law itself has no value, and makes no sense, to such a person.
But AG Sessions’ actions make perfect sense if law is to be followed, not twisted to serve a purpose. Until and if Congress changes the law, the DOJ will enforce what is currently written. This is a welcome change for all who want to live under the rule of law.