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 PresidentÂ 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, theÂ U.S. Equal Employment Opportunity Commission.Â 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 aÂ federal judgeÂ ruledÂ 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 inÂ 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 Zardaâ€™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 Zardaâ€™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 employeeâ€™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 â€“ or about certain types of men and women â€“ 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
â€” Anthony M. Kreis (@AnthonyMKreis) July 26, 2017
In short, the DOJ’s argumentÂ consists of these bullet points:
- TITLE VIIâ€™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 Zardaâ€™s boosters is the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace, whichÂ supportedÂ Zarda last month in its own court filing,”Â 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 notÂ determine application of the equal rights law.
Some responses via Twitter:
ðŸš¨ðŸš¨ ALERT: OUR OWN DEPARTMENT OF JUSTICE THINKS THE CIVIL RIGHTS ACT SHOULD NOT PROTECT #LGBTQ PEOPLE. ðŸš¨ðŸš¨
â€” 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
â€” GLAAD (@glaad) July 26, 2017
This argument is jaw dropping but not surprising. https://t.co/ozWunjmdDY
â€” 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
â€” 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
â€” Anthony M. Kreis (@AnthonyMKreis) July 26, 2017
â€” Nicole tate-naghi (@Nicolen922) July 26, 2017
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Legal Expert: Bill Barr Faces Potential ‘Criminal Investigation’
Judge Amy Berman Jackson, the federal judge who gave prison sentences to two of former President Donald Trump’s close allies — his 2016 campaign manager Paul Manafort and veteran GOP operative Roger Stone — was highly critical of former U.S. Attorney General William Barr in a recent ruling, describing his response to the Mueller Report as “disingenuous.” And legal expert Neal Katyal, who served as acting solicitor general under President Barack Obama, described Jackson’s comments as highly damning during an appearance on MSNBC’s “Deadline: White House” this week.
Host Nicolle Wallace, a Never Trump conservative who served as White House communications director under President George W. Bush, told Katyal that Barr “misrepresented” the “conclusions” that Barr reached after former Special Counsel Robert Mueller wrapped up the Russia investigation — asking Katyal to weigh in on the “political damage” that Barr did to the United States. And he responded that it gives him no pleasure to have been right when he appeared on MSNBC in 2019 and said that Barr was distorting the Mueller Report.
The 51-year-old Katyal told Wallace and Washington Post reporter Carol Leonnig — who also appeared as a guest — “I’m not sitting here feeling good about the fact that I and so many others were right two years ago. I mean, I desperately wanted to be wrong. And our system is set up to trust the attorney general. I mean, Barr was the attorney general of the United States, not the attorney general for President Trump. That’s what he was supposed to be — he was supposed to be for the people. But unfortunately, there was always a degree of corruption around him, and he constantly acted like one of Donald Trump’s personal attorneys.”
Katyal continued, “And now, with the new decision by the judge into his deception, he’s finally being treated like one of the gang — which he always was…. What you have in this decision by the judge yesterday — by Judge Amy Berman Jackson, who is a meticulous judge — is a statement that no, Barr actually lied to the court and to the American people. She called, you know, Barr’s actions, in the litigating position, disingenuous, which is something you almost never hear a federal judge say about any litigant — particularly not someone from the Justice Department and particularly not the attorney general of the United States.”
Katyal added that when a federal judge of Jackson’s stature describes one’s testimony before Congress as “disingenuous,” it’s “time to start thinking about retaining counsel, legal counsel.”
“There is the possibility of a criminal investigation into Bill Barr now,” Katyal told Wallace and Leonnig. “There’s also the possibility of civil and disciplinary actions against him as well.”
Liz Cheney Secretly Organized Key Move to Block Trump From Using Military to Overturn Election: Report
Rep. Liz Cheney (R-WY) was the organizer of an open letter by all living former Defense Secretaries against the military intervening in election disputes.
The revelation was made to Susan Glasser of The New Yorker by Eric Edelman, a friend of Cheney’s who served as an advisor to her father.
“Cheney’s rupture with the House Republican Conference has become all but final in recent days, but it has been months in the making. Edelman revealed that Cheney herself secretly orchestrated an unprecedented op-ed in the Washington Post by all ten living former Defense Secretaries, including her father, warning against Trump’s efforts to politicize the military,” Glasser reported.
“The congresswoman not only recruited her father but personally asked others, including Trump’s first Defense Secretary, Jim Mattis, to participate. ‘She was the one who generated it, because she was so worried about what Trump might do,’ Edelman said. ‘It speaks to the degree that she was concerned about the threat to our democracy that Trump represented.’ The Post op-ed appeared on January 3rd, just three days before the insurrection at the Capitol,” she reported.
It wasn’t the only action she took.
“Little noticed at the time was another Cheney effort to combat Trump’s post-election lies, a twenty-one-page memo written by Cheney and her husband, Phil Perry, an attorney, and circulated on January 3rd to the entire House Republican Conference. In it, Cheney debunked Trump’s false claims about election fraud and warned her colleagues that voting to overturn the election results, as Trump was insisting, would ‘set an exceptionally dangerous precedent.’ But, of course, they did not listen. Even after the storming of the Capitol, a hundred and forty-seven Republican lawmakers voted against accepting the election results,” Glaser wrote.
The joint letter was signed by Ashton Carter, Dick Cheney, William Cohen, Mark Esper, Robert Gates, Chuck Hagel, James Mattis, Leon Panetta, William Perry and Donald Rumsfeld.
“American elections and the peaceful transfers of power that result are hallmarks of our democracy. With one singular and tragic exception that cost the lives of more Americans than all of our other wars combined, the United States has had an unbroken record of such transitions since 1789, including in times of partisan strife, war, epidemics and economic depression. This year should be no exception,” the former defense secretaries wrote.
“Our elections have occurred. Recounts and audits have been conducted. Appropriate challenges have been addressed by the courts. Governors have certified the results. And the electoral college has voted. The time for questioning the results has passed; the time for the formal counting of the electoral college votes, as prescribed in the Constitution and statute, has arrived,” they explained. “As senior Defense Department leaders have noted, ‘there’s no role for the U.S. military in determining the outcome of a U.S. election.’ Efforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory. Civilian and military officials who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic.”
‘DEFCON 1 Moment’: Former Obama Advisor Slams Republicans Who ‘Hate Democracy’ and Warns It’s ‘Hanging by a Thread’
“This is an existential threat”
David Plouffe, former President Barack Obama’s campaign manager and White House senior advisor, slammed Republican lawmakers who “hate democracy,” which he warned is “hanging by a thread.” He also urged the Dept. of Justice to be “all over” the recount on Arizona, but warned the white supremacists, QAnon and MAGA cultists have already decided that Trump won the state, despite the actual facts that Joe Biden won, a fact that Republicans in positions of power agree with.
“This is a DEF CON 1 moment for democracy,” Plouffe told MSNBC’s Nicolle Wallace. “We’re not threatened by other nations or enemies, it’s a threat from within. Democracy is hanging by the thinnest thread in our country’s history. And what’s happening in Phoenix, Arizona, should be happening across the board of Roswell, New Mexico,” he added, apparently mocking Area 51 conspiracy theorists.
“It’s just crazy town. ”
“By the way there’s no question that the end of this ridiculous theatricality of the collection of white nationalists and QAnon supporters and Trump cult members are going to say, ‘you know, Trump should have won Arizona.’ We already know the outcome. But this is deadly serious. The Department of Justice needs to be all over this not just in Arizona, but all these efforts around the country.”
Plouffe called it “puzzling” because “you’ve got all these Republican elected officials who are in office because they chose to participate in the theater of democracy, and I’m not sure we’ve ever seen people in America hate democracy this much, because basically what they want to do is enshrine themselves in power and they’re doing it because they’re fearful of this ridiculous, shameful, historically incompetent cult leader down in Mar-a-Lago, who they all traipse down there and pledge allegiance to,” he said of Donald Trump.
“And none of them got into politics because they thought they were going to be weak-kneed and bending the ring to a cult leader but that’s where they’ve found themselves. Issues are secondary, their own careers in many respects are secondary.”
“Everybody who’s concerned about this country, not about who wins the next election or the one after that, but the entire enterprise is at risk here. This is an existential threat. And so it’s great to see DOJ, getting involved, to see a lot of groups like Mark Elias’ are starting to file lawsuits, but what ultimately needs to happen here and this won’t solve all of it is Congress must act.”
“They must pass voting rights legislation, and if they don’t because a few Democratic senators decide that protecting the filibuster, which of course has its roots in slavery and racism, you’re going to basically protect that, so that our democracy and our country can be handed over in permanence, to a party that increasingly is comfortable with white nationalism,” Plouffe said, it would be “tragic.”
“This is a DEFCON 1 moment for democracy. We’re not threatened by other nations or enemies, it’s a threat from within. Democracy is hanging by the thinnest thread in our country’s history… The Department of Justice needs to be all over this” – @davidplouffe w/ @NicolleDWallace pic.twitter.com/yZWrBzvvcP
— Deadline White House (@DeadlineWH) May 6, 2021
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