“I have determined that this memorandum is inconsistent in many respects with the E.O.,” Friel wrote to civil rights division colleagues. “I plan to confer with Department leadership about issuing revised guidance that comports with the policy set forth in the E.O. As part of that process, we will seek the input of Division subject matter experts.”
The unexpected, 6-3, Supreme Court ruling last June in Bostock v. Clayton County concluded that a half-century-old prohibition on sex discrimination in employment applies equally to discrimination against gay and lesbian workers as well as those who are transgender.
While the decision — written by Trump-appointed Justice Neil Gorsuch — did not explicitly extend the same rationale to discrimination in areas like education or housing, many lawyers said the ruling’s logic would inevitably apply to other laws that ban sex discrimination.
However, the analysis the Trump administration released publicly one day before Trump left office counseled against such interpretation and often seemed more enamored of Justice Samuel Alito’s dissent in Bostock than the controlling majority opinion.
“We must hesitate to apply the reasoning of Bostock to different texts, adopted at different times, in different contexts,” Acting Assistant Attorney General John Daukas wrote in the memo, which was dated Sunday.
By late Friday, the lengthy memo from Daukas had disappeared from the Justice Department website.
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