Jeff Sessions Thinks It Should Be Legal to Fire You for Being LGBT

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.

“It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

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.

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William A Moore

Ian this is my case now. Don was my partner. I'm surprised no one has reached out to me.

Anonymous

It's absolutely a form of sex discrimination. To use a rather glib and silly argument, if you wouldn't fire a woman for being attracted to men, you can't fire a man for being attracted to men. (This admittedly runs into a problem when it comes to bisexuality.)

Anonymous

I'm a gay man and an immigrant. I came to the US because American gay men had managed to achieve a level of freedom and independence that was unthinkable in my country, a country in which the government was the final arbiter of right and wrong.

Gay liberation in the US could happen only because the US has limited government, freedom of association, and freedom of speech. Please, ACLU, do not destroy this. Minorities need freedom of speech and freedom of association far more than (largely unenforceable) government anti-discrimination laws. I prefer employers not discriminate against me, but if an employer is homophobic, I want them to be able to tell me so that I can leave.

ACLU: you are not helping gay men and women with these kinds of efforts. Please return to your original mission of defending civil liberties, not inventing new rights.

Anonymous

What's sad is that according to the ACLU the workplace is an appropriate place to advertise one's sexual orientation. If we kept those "private things" out of the workplace there wouldn't be a problem.

Anonymous

Okay... so would that mean that someone with a partner of the opposite gender could not mention going to a barbecue with his wife and kids at work? Or that his wife couldn't drop off his lunch that he forgot? Or say or do anything that implies who he loves or is attracted to? That too would be "advertising your sexual orientation" in the workplace.

Really though, this is about more than what is discussed at work. In order to keep your orientation hidden from your boss you would need to refrain from leaving any clues in public. Don't post a picture of you and your partner on social media- or shop in the same town as your business with your wife or you may be discovered as straight.

The biggest difference here is that you would never be fired for your orientation. If your employer decided they were uncomfortable hiring a straight person, you could go to one of many other jobs that allow straights. No matter your orientation, we all need jobs to pay our rent and feed our family. We are trying to live our lives, not rub anyone's face in it.

I know one internet comment won't change your mind, but I honestly thought you could benefit from another perspective.

Anonymous

"At will employment" should be illegal as well.

Andrea Scott

Regarding the Martin Niemoller quote, Niemoller was a Lutheran pastor who spoke out against the Nazis during the war. He was captured and spent time in Dachau.

https://www.ushmm.org/wlc/mobile/en/article.php?ModuleId=10007392

Anonymous

If Jeff Sessions acts on this, wouldn't that be considered lying under oath? During his confirmation hearings he said he would follow the rule of law and protect LGBT rights? Now they are being stripped away little by little. Just shameful!

Anonymous

Sessions is a politician first & foremost. The vast majority of them at every level of government lie. I think it's a requirement to get the job! But you are correct. He did lie at his confirmation hearing, and one would think there would be a mechanism for Congress to hold him in contempt for lying under oath, at a minimum, or attempt to remove him from the position, at a maximum. Certainly no Congressional Republicans care or do anything because the majority of them harbor the same anti-LGBTQ attitude as Jeffy, and the majority of Congressional Democrats have become too Corporatized and do not have the wherewithal to really care about us everyday people with regard to ANYTHING that totally benefits the little people! The Justice Department does not have standing in this particular case and they shouldn't be getting involved. But Jeff the Elf Sessions is still working on getting back on Trump's good side and this very well may help him in that effort! This is all just my opinion. But don't hold your breath waiting for anything from Congress. All we'll hear is lip service if we hear anything!

Anonymous

"Sex" as written in Title VII refers to male or female (biology), not sexual orientation, "gender identity", "gender expression". If you want to change the meaning, lobby Congress to amend the law. Courts should interpret the law as it is written and intended and reject your claims.

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