Quick Hit:

On November 2, 2020, LGBT advocacy groups filed the second challenge to President Trump’s recent Executive Order on “Combatting Race and Sex Stereotyping” (the “Order”).  Like the first lawsuit, this lawsuit alleges that the Order violates the First and Fifth Amendments by infringing on the Constitution’s guarantees of Free Speech and Due Process.  Additionally, this Complaint alleges that the Order is unconstitutionally vague.

More Detail:

As we previously reported, the first challenge to the Order was filed by the NACCP Legal Defense Fund on behalf of the National Urban League (“NUL”) and the National Fair Housing Alliance (“NFHA”) in the Unites States District Court for the District of Columbia.  This second lawsuit was filed in the United States District Court for the Northern District of California by Lambda Legal on behalf of various LGBT groups.  Named defendants in the lawsuit include President Trump; Secretary of Labor, Eugene Scalia; the United States Department of Labor (“DOL”), the Director of Federal Contract Compliance Programs (“OFCCP”); the Office of Management and Budget (“OMB”); the U.S. Department of Justice (“DOJ”); and Attorney General William Barr, among others.

According to the Complaint, the Order “plainly discriminates against speech on the basis of . . . content and viewpoint . . . and constitutes a clear violation of the First Amendment.”  It requires organizations and individuals relying on federal funding to “choose between funding that is critical to their clients, and the trainings that are necessary to enable [these organizations] to serve [their] clients directly.”  This has the effect of “chilling” speech, which in the case of these organizations in particular, could have a more dire impact—the Plaintiffs note that without proper training on the history of marginalized communities and the role that “implicit bias” can play, their work cannot succeed.

Plaintiffs seek a declaratory judgement that the Order and its implementing agency action are unlawful and unconstitutional, and preliminary and permanent injunctions enjoining implementation and enforcement of the Order.

We anticipate that other lawsuits against the Order will be filed, and we will monitor and report on any newsworthy developments.