Trump administration argues Civil Rights Act doesn’t cover LGBTs
The Justice Department this summer filed a brief arguing that LGBT people are not protected from discrimination under Title VII of the Civil Rights Act.
Fortunately, courts will decide whether the landmark Civil Rights Act of 1964 protects LGBT people — not President Donald Trump or Attorney General Jeff Sessions, said James Esseks, director of the American Civil Liberties Union LGBT and HIV Project.
The unsolicited brief dropped in the 2nd U.S. Circuit Court of Appeals the day Trump tweeted he planned to ban transgender people from the U.S. military. Sessions and Trump, Esseks said, “are hell-bent on playing politics with people’s lives.”
The brief demonstrates the Trump administration is “determined to impose retrograde policies that roll back the civil rights of our most marginalized populations,” according to David Dinielli, deputy legal director of the Southern Poverty Law Center in Alabama. “In doing so, the administration is pandering to anti-LGBT extremists who are far outside the mainstream.”
The case before the appeals court in New York City, Zarda v. Altitude Express, involves a skydiving instructor who said his employer violated Title VII by firing him in 2010 after he came out as gay.
Title VII bans workplace discrimination based on race, color, religion, national origin and sex. The Equal Employment Opportunity Commission enforces Title VII and has said sexual orientation and gender identity are covered under sex discrimination.
Justice’s brief contends the EEOC “is not speaking for the United States and its position about the scope of Title VII.”
In April, a three-judge panel for the appeals court upheld a lower court finding that the civil rights law does not cover sexual orientation.
Now the full 2nd Circuit is considering an appeal of the panel’s finding.
Justice Department spokesman Devin O’Malley said the brief argues that the courts cannot expand the law beyond what Congress has provided.
Attorney Sam Schwartz-Fenwick, a partner with Seyfarth Shaw LLP, said the amicus brief by the DOJ adds more uncertainty to an unsettled legal issue.
“In the past year alone, the 7th Circuit has held that Title VII’s prohibition on sex discrimination encompasses claims of sexual orientation discrimination, while the 11th Circuit reached the opposite result,” Schwartz-Fenwick said. “Absent Supreme Court review or legislative action by Congress, it is likely that the law will remain unsettled.”
Sarah Warbelow, legal director for the Human Rights Campaign, warned the DOJ has declared lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act and Title IX in addition to Title VII.
“For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law,” Warbelow said, adding that the administration’s “filing is a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically-driven and legally specious result.”