People For the American Way

LGBTQ Allies Cite Eric Dreiband DOJ Nomination as Evidence of Trump’s Disdain for Civil Rights

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LGBTQ Allies Cite Eric Dreiband DOJ Nomination as Evidence of Trump’s Disdain for Civil Rights

People For the American Way is among the national, state, and local LGBTQ and allied organizations that oppose the nomination of Eric Dreiband to be Assistant Attorney General for Civil Rights at the Department of Justice, citing the nomination as further evidence of the Trump administration’s disdain for civil rights. You can download our letter here.

Dear Chairman Grassley and Ranking Member Feinstein:

On behalf of Lambda Legal and the 62 undersigned national, state and local organizations serving the lesbian, gay, bisexual and transgender (LGBT) community, we write to again oppose the nomination of Eric S. Dreiband to serve as the Assistant Attorney General for the Civil Rights Division at the U.S. Department of Justice (“Justice Department” or “DOJ”). In the current climate, experienced and principled leadership is needed to ensure the civil rights of our most vulnerable populations are protected and enforced. Mr. Dreiband’s record of opposing civil rights renders him ill-suited to provide that kind of leadership to the Civil Rights Division.

Last year marked the 60th anniversary of the Civil Rights Division (“Division”). Throughout its history, the Division has defended and vindicated the civil rights of vulnerable Americans. In the face of increased violence and pervasive discrimination against the LGBT community, our organizations know that the work of the Division is more important than ever. In response to this crisis, however, DOJ has gone beyond merely abdicating its obligation to defend civil rights. Rather, under Attorney General Jeff Sessions, DOJ has been using its authority to inflict harm on vulnerable and marginalized communities, including LGBT people.

The following examples illustrate the extent to which those currently leading the Department of Justice have embarked on an anti-civil rights crusade. Against this backdrop, we are struck by the message that the nomination of Eric Dreiband sends. His overwhelmingly anti-civil rights record and his personal involvement in cases seeking to diminish the rights of LGBT people and other vulnerable communities strongly suggests that he will continue to promote the anti-civil rights agenda of this administration, rather than exercise the kind of strong leadership that the Civil Rights Division needs and deserves.

Attorney General Sessions began unraveling LGBT protections the minute he arrived at the Justice Department and has not stopped since. One of his first moves as Attorney General was to halt the Justice Department’s enforcement of important guidance documents defending transgender people from discrimination. Specifically, at Attorney General Sessions’ direction, DOJ shamefully withdrew its challenge to a poorly reasoned, nationwide preliminary injunction in Texas District Court halting the enforcement of the guidance issued by the Department of Education regarding transgender students, and jeopardized other important federal guidance documents dealing with anti-LGBT discrimination.1 Shortly thereafter, the Acting Assistant Attorney General for Civil Rights, along with his counterpart at the Department of Education, rescinded their joint Dear Colleague Letter providing important assistance to school officials about their obligations to transgender and gender non-conforming students under Title IX, thereby jeopardizing the safety of vulnerable transgender students.2 Indeed, since the rescission, the Office of Civil Rights has reportedly begun dismissing complaints of discrimination from transgender students on the grounds that such complaints are not within its jurisdiction.3

DOJ continued its aggressive roll-back of LGBT protections by withdrawing its defense of the nondiscrimination regulations implementing the Affordable Care Act that prohibited, among other things, discrimination in the provision of medically necessary health care to transgender people. Instead of defending the civil rights of transgender people in the litigation, DOJ acquiesced to the district court’s order enjoining enforcement of these important protections, and asked the Court to remand the case to the Department of Health and Human Services (“HHS”) to “address the issues raised in the litigation,” by (among other things) considering the possibility of reopening these regulations.4

In the realm of employment discrimination, Attorney General Sessions has directed DOJ to fight the trend in favor of coverage for LGBT people offered by Title VII’s prohibition on sex discrimination. This summer, DOJ filed an amicus brief in the U.S. Court of Appeals for the Second Circuit urging that court to adopt an interpretation of Title VII that would deny protection to gay, lesbian and bisexual workers.5 In doing so, the Department directly contradicted the Equal Employment Opportunity Commission, which for years has advanced the position that Title VII’s prohibition on sex discrimination protects against discrimination on the basis of sexual orientation and gender identity. DOJ’s unusual decision to enter the case to contradict the position of the EEOC prompted questions from the Second Circuit Court of Appeals about the role of the Civil Rights Division in the development of DOJ’s position.6 Two days after Mr. Dreiband’s hearing, DOJ filed a brief in the Supreme Court arguing that a baker should be exempt from a state non-discrimination law because, in its view, the First Amendment gave him the right to refuse to serve a gay couple seeking to purchase a wedding cake.7

And then, the day after Mr. Dreiband was voted out of this Committee on an 11 to 9 party-line vote, Attorney General Sessions announced that he was reversing DOJ’s litigation position with respect to the meaning of Title VII’s coverage of claims of discrimination against transgender people.8 Nothing in Mr. Dreiband’s record suggests that he would have resisted these actions by the Attorney General; in fact, we believe that the administration’s continued support for his nomination is a strong indication that Attorney General Sessions believes that Mr. Dreiband will support DOJ’s restrictive view of this important civil rights law, and the other federal statutes whose interpretations are guided by Title VII. Indeed, when faced with the question of how he would interpret Title IX’s protections for transgender students during his confirmation hearing, Mr. Dreiband responded by pivoting to a response focused on hate crime legislation that specifically enumerates sexual orientation and gender identity as protected characteristics. Mr. Dreiband’s emphasis on enumerated legislation likely reveals his view that unenumerated protections against discrimination based on sex under Title IX do not encompass sexual orientation and gender identity.

Similarly, it is unclear how Mr. Dreiband will address ongoing efforts by the DOJ to expand religious liberty at the expense of civil rights. After Mr. Dreiband’s hearing, the DOJ issued a broad religious liberty memo that seeks to narrow the coverage of civil rights law as applied to those wish to discriminate as an expression of their religious or moral beliefs.9 It is vital to clearly understand whether the leader of the Civil Rights Division will provide a voice for vulnerable communities who need protection from discrimination,10 or whether he will simply further an agenda focused on granting a broad license to discriminate against LGBT people and others who do not conform to a particular religious orthodoxy. In light of these significant post-hearing developments, and the fact that there are two new members of the Senate Judiciary Committee, it is inappropriate to vote on Mr. Dreiband’s nomination without the benefit of another hearing where his records and his views can be more thoroughly examined in light of these and other events related to the state of civil rights in this country.11

The LGBT community is not the only community that has suffered as a result of the Department of Justice’s abdication of its role in defending civil rights. This administration’s blatant hostility toward the Muslim community, for example, has been just as unveiled and vicious. Likewise, DOJ has abandoned its mission of ensuring and promoting constitutional policing by pulling back from consent decrees with police departments under investigation for failing to protect people of color and other vulnerable populations from discrimination and abuse.12 The Educational Opportunities Section of the Civil Rights Division has been directed to focus on challenging race-conscious admissions policies, notwithstanding schools’ clear legal authority to use such tools to promote important educational goals,13 and, at every opportunity, the Department has abdicated its statutory and moral obligation to defend voting rights.14 In the last year, the Department of Justice has abandoned longstanding litigation in Texas and North Carolina involving laws that courts have denounced for their racially discriminatory effect, and in some cases, intentionally discriminatory purposes. More recently, DOJ joined forces with the Pence/Kobach Commission’s efforts to suppress the vote, first by sending a letter to 44 states instructing them of their duty to purge voter rolls and demanding they provide information about voter purging requirements within 30 days,15 and then by urging the Supreme Court to allow states to eliminate people from voter registration rolls based merely on their failure to vote in recent elections.16 Although this notorious commission was disbanded as a result of pushback from individuals across the political spectrum, it is imperative that there be strong leadership at the helm of the Civil Rights Division to ensure that voting rights are safeguarded from such intrusions.

The foregoing examples reveal the extent of the DOJ’s anti-civil rights campaign. And it is clear that the nomination of Eric Dreiband will not—and is not intended to—improve this Justice Department’s approach to civil rights. Mr. Dreiband’s credentials for this job lead to only one conclusion: he has been chosen because this administration has confidence that he will continue to further their anti-civil rights agenda. For example, Mr. Dreiband chose to represent the University of North Carolina when it was sued by civil rights groups and the U.S. Department of Justice after North Carolina passed a law (HB2) restricting transgender people’s ability to access public restrooms. The nomination of an attorney who volunteered to join a litigation team seeking to frustrate the Civil Rights Division’s efforts to block a North Carolina law restricting transgender people’s access to public restrooms (HB2) is insulting not only to the LGBT community but to the career men and women of the Division who valiantly litigated that case for many months (until the Sessions Justice Department abandoned the litigation following a modification of the law). His nomination embodies this Justice Department’s lack of commitment to defending the civil rights of LGBT people.

While our concerns about his approach to issues of direct concern to LGBT Americans are significant, they are only the tip of the iceberg when it comes to this nominee. As is manifest from his record, Mr. Dreiband has an extensive track record of working to undermine civil rights in other spheres as well. For example, he represented Abercrombie & Fitch before the Supreme Court in a case where he made the losing argument that Muslim women should have to remove their headscarf in order to comply with the store’s “look” if they do not first explain to the company that the headscarf is worn as part of the Muslim religion. Fortunately, the Supreme Court rejected the position advanced by Mr. Dreiband in an 8-1 decision,17 but as with his participation in the HB2 case, his involvement in the Abercrombie case casts doubt on Mr. Dreiband’s capacity to lead the civil rights work of the Department of Justice.

Moreover, Mr. Dreiband represented a group of organizations in the Supreme Court seeking religious exemptions from the contraceptive requirement in the Affordable Care Act, an exemption which, if granted, would have made it much more difficult for women to access birth control through an employer-provided health plan.18 He advocated on behalf of Bloomberg, L.P. against 60 women who were challenging the company’s pregnancy leave practices. And perhaps most revealing of his personal views, Mr. Dreiband testified as a private citizen (not on behalf of a client) before Congress against the Lilly Ledbetter Fair Pay Act, a law that helped ensure women can sue for discrimination even if the employer is able to keep the discrimination hidden.19

Mr. Dreiband has also spent the vast majority of his career working to defeat worker protections. Notably, Mr. Dreiband has leveraged his experience with the EEOC to testify against worker protections before Congress as a private citizen. For example, Mr. Dreiband testified in support of federal legislation that would have significantly limited the EEOC’s ability to initiate or intervene in litigation. The bills failed to advance, but if passed, would have placed a chilling effect on future EEOC enforcement action by requiring the agency to prove their conciliation efforts were made in “good faith.” In his testimony, Mr. Dreiband noted the EEOC’s findings that African Americans and Hispanics are arrested and incarcerated at rates disproportionate to their numbers, but testified in favor of legislation that would have made it more difficult for the EEOC to discourage employers from asking for criminal background information in the hiring process.20 Mr. Dreiband has repeatedly taken issue with measures such as “ban the box,” which would limit the unfair use of a job applicant’s criminal history in the hiring process.21 Mr. Dreiband also testified in his personal capacity against the Protecting Older Workers Against Discrimination Act, legislation that would have lowered the burden on older workers to prove age discrimination.22

At a time when the civil rights of vulnerable minorities are under unprecedented assault, it is not a coincidence that the budget proposed for the Justice Department would defund and deprioritize civil rights enforcement. Specifically, the proposed 2018 budget eliminates 121 positions, including 14 attorneys, and rolls back efforts to combat discrimination against LGBT people and people with disabilities, and civil rights abuses by law enforcement.23 The nomination of Mr. Dreiband only further reinforces the message implicit in the 2018 budget proposal: the Civil Rights Division is no longer in the business of defending civil rights.

The Senate, however, need not roll over and let this happen. This body has an important role to play in deciding what direction the Civil Rights Division, the Department of Justice, and by extension, our country will go. Particularly at this moment, when the country is still reeling from the violence of Charlottesville and embarrassed by the racist language emanating from the White House, the Senate has an opportunity to send a clear message that civil rights enforcement is a key government function, and that the Department of Justice must protect and defend the rights of all citizens, not just those who command the President’s attention. Mr. Dreiband, with his track record of impeding and resisting civil rights, is simply not the right man for the job.

Thank you for considering our views on this important issue. Please do not hesitate to reach out if we can provide additional information throughout the confirmation process. You can reach us through Sharon McGowan, Director of Strategy for Lambda Legal, at [email protected].

cc: United States Senate Judiciary Committee Members