DOJ's New Scrutiny

Justice Department's ''historic document'' about anti-LGBT police discrimination signals new approach to investigations -- and to gender identity

The Department of Justice Civil Rights Division’s report on its ”Investigation of the New Orleans Police Department,” which was released on March 16, detailed serious problems regarding racial profiling, excessive and even lethal force and inappropriate treatment of potential sexual assaults.

Assistant Attorney General Thomas Perez
Assistant Attorney General Thomas Perez

Briefly noted in initial reports about the year-long investigation’s outcome were the findings that, in addition, ”discriminatory policing” has been occurring against lesbian, gay, bisexual and transgender people in New Orleans. As Assistant Attorney General Thomas Perez, the head of DOJ’s Civil Rights Division, said on March 17, ”We found regular harassment of LGBT individuals, and the use of the ‘crimes against nature’ statute almost solely against LGBT individuals.”

Although these findings are notable on their own, the underlying reasoning that led to the full inclusion of LGBT people in the investigation in the first place was groundbreaking.

The report represented the first time that DOJ applied its Feb. 23 conclusion that sexual orientation governmental classifications are subject to heightened scrutiny in the course of using its investigatory authority to examine potential constitutional violations by state and local law enforcement.

Additionally – and also for the first time – DOJ announced that the heightened scrutiny that it concluded applies to sexual orientation classifications also applies to classifications based on gender identity.

As Shannon Minter of the National Center for Lesbian Rights told Metro Weekly, ”It really is a historic document in that respect.”

The extensive report address a broad range of problem areas, from use of force; stops, searches and arrests; office recruitment, training and evaluation; misconduct complaint procedures; and more. But it is in the discriminatory policing section of the report that these ”historic” conclusions are noted.

When discussing the legal standards that apply to consideration of when action, inaction or some pattern or practice of police constitutes discriminatory policing, the report stated, ”[W]e note that a number of factors weigh in favor of applying heightened scrutiny in the context of discrimination by law enforcement on the basis of sexual orientation and gender identity, including a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (”LGBT”) individuals.”

On Feb. 23, when DOJ concluded that it would no longer defend Section 3 of the Defense of Marriage Act in court challenges, it did so because of the conclusion that Section 3 – the federal definition of marriage – is unconstitutional when subject to the heightened scrutiny that it decided should be applied to sexual orientation classifications.

The ”heightened scrutiny” determination is part of the test used by courts when evaluating claims that a law or government practice violates the equal protection rights of a group or individual. Under the most basic level of scrutiny — rational basis — the government need only show that the law provides a ”reasonable” way of seeking a ”legitimate” government aim.

Contrast this with a ”suspect class,” which receives ”strict scrutiny.” In such a case — involving race or religion, for example — the law is presumed to be unconstitutional and the government must prove that the law is ”narrowly tailored” and the ”least restrictive” way to advance a ”compelling” governmental interest.

In between is heightened, or intermediate, scrutiny. Under this scrutiny, laws in question must be ”substantially related” to ”important” governmental interests.

The Feb. 23 letter, because it addressed a challenge to DOMA, involved discussion only of sexual orientation discrimination and found that heightened scrutiny applied. Now, however, as Minter said, ”I am very happy to see that, in DOJ’s view, that the same considerations that led to the conclusion that heightened scrutiny applies to sexual orientation discrimination also applies to gender identity discrimination.”

Fred Sainz, the Human Rights Campaign’s vice president for communications, noted, ”I think that they rightly called it as they see it. I think that it is incredibly encouraging that the Department of Justice is walking the walk on heightened scrutiny – especially when the language now encompasses gender identity.”

Also, in the Feb. 23 letter, the only question was how DOJ viewed the law. Attorney General Eric Holder wrote that the federal government would remain a party to the DOMA cases, and he encouraged Congress to take steps to have its views represented in court – which the House leadership is doing.

In the New Orleans report, in contrast, DOJ spokesperson Xochitl Hinojosa told Metro Weekly that DOJ’s authority for investigating allegations of LGBT discriminatory policing came from ”42 U.S.C. Sec. 14141 using the 14th Amendment.”

The Fourteenth Amendment is the provision of the Constitution that guarantees the equal protection of the laws, and the statutory provision referenced makes it illegal for any state or local government ”to engage in a pattern or practice of conduct by law enforcement officers … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

With this report, therefore, DOJ has established that it will apply heightened scrutiny not only to federal laws but also to state or local government laws or practices that discriminate based on sexual orientation or gender identity – and that it will investigate, and could potentially prosecute, those claims when it deems warranted.

Looking at the scope and breadth of the report, as well as the underlying conclusions that allowed for the investigation, Minter said, ”I think that what we’re finally seeing is the full integration of LGBT issues into the Constitution, and DOJ is following through on their conclusion that discrimination based on sexual orientation or gender identity is subject to heightened scrutiny.”

Sainz looked ahead, adding, ”I think that this is a very, very encouraging development by the Justice Department that we will see repeat itself in very many beneficial ways, that we may not even yet know, in years to come.”

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