Rep. Justin Amash (L-MI) has suggested that federal law should be reinterpreted to extend existing employment protections against discrimination on the basis of sex to discrimination against transgenders, in an interview with Forbes on Friday.
“I would protect transgender Americans under the protections that exist for sex,” Amash. “I think that people can take the term ‘sex’ that’s in federal law and interpret it to mean things beyond what it traditionally meant.”
He went on to suggest the courts could play a role to increase the scope of these laws.
“Sometimes, we have to catch up to the law,” Amash added. “In other words, the law is written and the law will be fairly broad, and the public and the courts are not actually caught up to what is actually in the text.”
The protections Amash is likely referring to are in the Civil Rights Act of 1964, which bans employers from discriminating on grounds of sex, given that the Supreme Court is set to rule in the coming days about whether to expand this protection to transgenders. By seeking to extend this law to also include transgender Americans, Amash is advocating for a substantial expansion of government intrusion into the employment practices of private businesses. Furthermore, doing this by the courts’ merely reinterpreting existing law and not by altering existing federal law through Congress would constitute clear judicial activism.
Amash’s position is at odds with many libertarians, who have traditionally defended the right of private entities to discriminate, even when they disapprove of the discrimination on a personal level.
“A free society will abide unofficial, private discrimination,” Sen. Rand Paul (R-KY) stated in 2002.