Trump pushes anti-gay agenda

I respond to the Monday Dispatch article “Push is on for LGBT protection.” I have practiced employment-discrimination law for 33 years and have represented many members of the LGBT community. The article said “sexual orientation today still is not a protected class under federal law.”

The Equal Employment Opportunity Commission is the federal agency charged with enforcing the federal law prohibiting such discrimination, Title VII of the 1964 Civil Rights Act. Under President Obama, the EEOC saw discrimination based upon sexual orientation as prohibited “sex” discrimination. Three legal theories support this stance.

The first is that it can involve sex stereotyping, that is, the employer believes that a person should act and dress like a person of their gender, including preferring a member of the opposite sex as a sexual partner. Second, the discrimination would not have occurred without the employee being a certain sex. Third, some courts reason that sexual-orientation discrimination is based upon “association” with an individual of a protected class — here the protected class of “sex.”

There has been considerable litigation in the federal courts about whether Title VII covers employment discrimination based upon sexual orientation. The Sixth Circuit Court of Appeals, which includes Ohio, has ruled that Title VII covers discrimination against transgender individuals because it involves illegal sex stereotyping. Not surprisingly, the federal courts in different circuits have reached conflicting conclusions on this issue. This split in the circuits makes the issue ripe for consideration by the U.S. Supreme Court.

The Trump administration has made clear its position on the issue. In July 2017, the Department of Justice filed an amicus brief in the Second Circuit Court of Appeals arguing that Title VII did not cover discrimination against gay and bisexual employees. The brief is part of an aggressive anti-gay agenda.