Jeff Sessions’ DOJ Argues Sexual Orientation Discrimination Is Not Sex Discrimination

The Department of Justice has just filed a brief arguing the landmark Civil Rights Act of 1964 does not protect gay workers. Barely 12 hours after President Donald Trump launched a historic assault banning active duty transgender service members, his administration has told a federal appeals court the Civil Rights Act of 1964 does not protect “homosexuals” from discrimination.

(The DOJ’s use of the term “homosexuals” is itself a throw back to a time when anti-LGBT discrimination was acceptable.)

In short, the amicus brief claims sexual orientation discrimination is not sex discrimination, contrary to the published position of at least one federal agency, the U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act “makes it unlawful to discriminate against someone on the basis of race, color, national origin, sex (including pregnancy and gender identity) or religion.”

In 2015 a federal judge ruled that “claims of sexual orientation discrimination are gender stereotype or sex discrimination claims,” in a Title IX case.

Wednesday evening the Dept. of Justice filed an amicus brief in Zarda v. Altitude Express. Lambda Legal summarized the case:

In September 2010, [Donald] Zarda, a skydiver, filed a lawsuit in U.S. District Court for the Eastern District of New York against his former employer, Altitude Express, Inc, alleging that the company violated the Civil Rights Act by discriminating against him because of his sexual orientation. The district court rejected his claim, saying that the Civil Rights Act does not protect him for bias he endured for being a gay man. Tragically, in October 2014, Zarda died in a base jumping accident in Switzerland.

In January 2017, Gregory Antollino argued an appeal on behalf of Zarda’s estate asking a three judge panel of the Second Circuit to revisit its precedent and hold that sexual orientation discrimination is a form of sex discrimination and therefore illegal under the Civil Rights Act. The three-judge panel denied Zarda’s claim in April 2017, but held that Zarda would be entitled to a new trial if the full Second Circuit agreed with his arguments about Title VII of the Civil Rights Act.

The ACLU, in its amicus brief in the case, writes that the “Supreme Court has explained that sex discrimination occurs whenever an employer takes an employee’s sex into account when making an adverse employment decision. Courts have applied this principle to countless forms of employer bias, from cases involving a ban on hiring mothers of preschool-aged children to bias against Asian-American women to the failure to promote a Big Eight accounting firm partnership candidate because she was considered to be ‘macho.’ Time and again, courts have refused to allow generalizations about men and women – or about certain types of men and women – to play any role in employment decisions.”

But that’s not what the Trump Dept. of Justice is arguing. The DOJ is arguing that it’s OK to discriminate against LGBT people in the workplace.

The DOJ embraces the theory Va did in Loving v. Virginia–employers who hate gay couples dislike lesbians and gay men equally. So it’s okay. pic.twitter.com/xF1KYpSrbv

— Anthony M. Kreis (@AnthonyMKreis) July 26, 2017

In short, the DOJ’s argument consists of these bullet points:

• TITLE VII’S BAR AGAINST DISCRIMINATION BECAUSE OF SEX IS NOT VIOLATED UNLESS MEN AND WOMEN ARE TREATED UNEQUALLY
• DISCRIMINATION BECAUSE OF SEXUAL ORIENTATION IS NOT DISCRIMINATION BECAUSE OF SEX UNDER TITLE VII

“Among Zarda’s boosters is the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace, which supported Zarda last month in its own court filing,” Buzzfeed’s Dominic Holden reports.

He notes, “the Justice Department argues, ‘the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.'”

In other words, the DOJ is saying the EEOC, whose job it is to determine application of the equal rights law, does not determine application of the equal rights law.

Some responses via Twitter:

🚨🚨 ALERT: OUR OWN DEPARTMENT OF JUSTICE THINKS THE CIVIL RIGHTS ACT SHOULD NOT PROTECT #LGBTQ PEOPLE. 🚨🚨

— Lambda Legal (@LambdaLegal) July 26, 2017

Today this administration has really proved that they’re definitely not friends to LGBTQ people. https://t.co/BY4REg8PWC

— GLAAD (@glaad) July 26, 2017

This argument is jaw dropping but not surprising. https://t.co/ozWunjmdDY

— Anthony M. Kreis (@AnthonyMKreis) July 26, 2017

In this brief the United States also decides to to start referring to us as “homosexuals” again. MAGA https://t.co/LWHtbm6C6U

— Joshua Block (@JoshACLU) July 26, 2017

The DOJ thinks sexual orientation is unrelated to the sex of the persons you form intimate relationships with and any social constructs. pic.twitter.com/KQM4zWfqSS

— Anthony M. Kreis (@AnthonyMKreis) July 26, 2017

#zarda case – LGB rights at stake in the case – DOJ wants to give LGB folks fewer rights, their own EEOC commission’s opinion be damned. https://t.co/spUQXkjXiY

— Nicole tate-naghi (@Nicolen922) July 26, 2017

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