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Chai Feldblum

Senator Mike Lee Right to Be Leery of Feldblum


Plenty of conservatives remember the name Chai Feldblum, Barack Obama’s head of the Equal Employment Opportunity Commission (EEOC). She came to the administration with an impressive resume of radicalism — complete with jobs at the Human Rights Campaign, the ACLU, and a clerkship with U.S. Supreme Court justice who authored Roe v. Wade. Perhaps most famously (or infamously?), it was Feldblum who said that when same-sex marriage and religious liberty clash, she’d have “a hard time coming up with any case in which religious liberty should win.” So why, exactly, is she being re-nominated? Good question.

Senator Mike Lee (R-Utah) is as confused as the rest of us. In a new piece for the Daily Signal, the Utah senator points out that if Feldblum were a typical administrator, it might make sense to confirm her. But Feldblum is anything but typical, she is an activist. Her radical “views on marriage and the appropriate use of government power place her far outside even the liberal mainstream.” As Senator Lee reminds everyone, Feldblum has claimed to be “not sure marriage is a normatively good institution,” and her vision of society “cannot be adequately advanced if pockets of resistance… are permitted to flourish” (emphasis mine). In Feldblum’s view, “no individual exceptions based on religious beliefs” should be allowed at all if they come into conflict with “the goal of liberty for gay people.”

Apart from being an extremist, it seems Feldblum is also power-happy and pleased that “other agencies” will “look to” the EEOC for guidance on legal interpretation. This could be particularly dangerous, since Feldblum, like most LGBT activists, believe think sex discrimination should include “gender identity” and “sexual orientation” discrimination — which, when combined with her radical views expressed above, makes her approach as a commissioner very toxic to the rule of law.

Even supporters of transgender-focused protections, such as the Employment Law Alliance (ELA) agree that “the current law can’t be extended to accomplish” the LGBT movement’s goals — which is exactly what Feldblum and her allies want to try to do. “It’s a slippery slope when you allow an agency to legislatively rulemake without going through the appropriate process,” noted Ginger Schröder from the ELA. “We’re set up as a nation of laws. We have a procedure in place for the passage of laws and the interpretation of laws and it should not be the case that EEOC is expanding the scope of a statute without going through that proper process.”

We completely agree. Different people can have different views on policy, and they can argue based on the merits of their views. But it’s an entirely different story to claim you’re enforcing the law when you’re actually implementing policy in a sneaky and underhanded manner.

That’s especially important on the question of what constitutes sex discrimination. We’ve watched as LGBT advocates cite “the law” when court decisions are in their favor, but invoke “fairness” when the rulings go against them. That kind of open and willful disregard for the law is exactly why we can’t have activists like Feldblum in positions that oversee, administer, or enforce the law. They cause deep structural harm to our constitutional order, and the rule of law suffers as a result — something else we’ve observed in the context of the EEOC.

The Trump administration, especially through Attorney General Jeff Sessions at the Justice Department, has taken positive steps to bolster this order by ensuring it is enforcing and not making law. The federal Title IX and Title VII statutes bar discrimination based on “sex,” an issue which has always been simply about men and women. Even Supreme Court Justice Ruth Bader Ginsburg, writing about the proposed Equal Rights Amendment decades ago, didn’t take “gender identity” under consideration when she dismissed concerns that sex non-discrimination provisions could force people to open bathrooms to both genders. So when the Trump administration’s Department of Justice and Department of Education announce a policy of interpreting Title IX and Title VII this way, they’re simply announcing a policy of departing from President Obama’s novel and radical approach back to interpreting the law as it had always been.

Unfortunately, Chai Feldblum would carry on Obama’s legacy, and her views stand in stark contrast to the Trump administration in this regard. Her confirmation would be bad for the rule of law and bad for our country. Senator Lee is right to point this out, and we stand with him in doing so.


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