In the latest and most significant anti-LGBT action yet from the Trump administration, the Justice Department last night filed a brief with the U.S. Court of Appeals for the Second Circuit arguing that federal civil rights laws do not protect individuals from discrimination based on their sexual orientation or gender identity. The case in question concerns a former skydiving instructor who filed a lawsuit against his employer in 2010, alleging that the company terminated him because of his sexual orientation.
This appalling brief from the Jeff Sessions-led Justice Department comes as the Second Circuit is preparing to hear arguments about whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, also prohibits discrimination against lesbians, gay men, and bisexual people — a position supported by, among many others, the U.S. Equal Employment Opportunity Commission (EEOC).
In April, the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago, considered the same question. They ultimately ruled that discrimination against a person based on their sexual orientation is a form of sex discrimination that is prohibited under Title VII. In writing for the court, Chief Judge Diane P. Wood noted that, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”[RK1]
And yet these kinds of legal gymnastics are now exactly what the Justice Department is attempting to do.
As if the Trump administration’s legal arguments in this case weren’t galling enough on their own, the fact that they are even weighing in at all in this case is noteworthy for how outrageous it is. The United States is not a party to the case, thus the administration cannot argue that its hand was forced. No, this is nothing more than a shameful effort on the part of a very anti-LGBT attorney general to advance discriminatory legal arguments. The question of whether Title VII prohibits gender identity-based discrimination — a position well-supported in case law — isn’t even before the court in this case. Rather, this case addresses the question of whether the federal law that prohibits employment discrimination based on sex also bars discrimination based on a person’s sexual orientation.
It is disgraceful that the Trump administration is working affirmatively to expose LGBT people to discrimination. Fortunately, the question of whether the Civil Rights Act of 1964 protects LGBT people is ultimately a question for the courts to resolve, not Attorney General Sessions.
So while the Justice Department abdicates their responsibility to fight for and uphold our civil rights, we will continue to push forward.
The ACLU is confident that the law is in our side and that the courts will come to the right decision, just as the Seventh Circuit already has. And we’re prepared to continue this fight to make clear that discrimination against LGBT people is just another form of sex discrimination that is prohibited under federal civil rights laws.