As was announced earlier today, the Justice Department has determined that it will not appeal its loss in the case of Diane Schroer, “a retired Army Special Forces commander from Alexandria, Va., had been offered a job at the Library of Congress when he was a man, David Schroer,” and had the job “rescinded the day after Schroer told a library official he was going to have an operation to become a woman.”
This was a smart decision on the part of the Justice Department.
And before anyone asks how that doesn’t contradict my writing on the Justice Department’s obligations to defend the Defense of Marriage Act, Georgetown’s Nan Hunter does the work so I don’t have to:
This is the case that I have been saying for months would be an outrage if Justice decided to appeal. Unlike 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.
Bookmark Prof. Hunter’s blog if you haven’t already!
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