In studying how and how much administrative agencies influence how judges interpret statutes, researchers face this problem: Judges write court opinions strategically, making those opinions sometimes unreliable measures of why judges read statutes the way they do. This paper suggests another approach: Trace agency influence by looking at how often lawyers refer to agency views in their briefs on dispositive motions. To illustrate this approach, this paper examines how much the Equal Employment Opportunity Commission (EEOC) during the period 2008–2020 affected how likely courts would read Title VII’s ban on “sex” discrimination to cover transgender individuals. The paper relies on an original hand-coded sample of documents in Title VII lawsuits in federal district court during 2008–2020. In those lawsuits, transgender plaintiffs alleged employer transgender discrimination as violating Title VII’s ban on employer “sex” discrimination. Based on what we found, we infer that the EEOC opinions and guidance documents on this issue alone weakly influenced, if at all, what lawyers argued. In so doing, the paper illustrates a way to test for a possible path of agency influence that researchers may otherwise mismeasure by relying solely on court opinion text. It also adds to past research into how lawyers, judges, and social movement actors pressed for or against legal protections of transgender workers.

Continue reading The Weak Agency Returns? The EEOC and Title VII Transgender Employment Discrimination Lawsuits, 2008-2020