The U.S. Department of Justice under Attorney General Jeff Sessions did not surprise anyone with the move, but its decision to file a brief in a bias case that a major civil rights law does not protect employees from discrimination based on sexual orientation puts a significant hurdle in front of LGBT people.
In a brief filed in Zarda v. Altitude Express with the 2nd U.S. Circuit Court of Appeals in New York July 26, the Department of Justice argues that the 1964 Civil Rights Act's Title VII – a section that prohibits sex discrimination in employment – does not also prohibit sexual orientation discrimination.
The issue is one that has been brewing in courts for several years. One federal appeals court – the 7th Circuit, covering Illinois, Indiana, and Wisconsin – ruled recently, in Hively v. Ivy Tech, that Title VII does cover sexual orientation. If another circuit, like the 2nd Circuit that controls New York, Connecticut, and Vermont, rules differently, there is a strong likelihood the U.S. Supreme Court will accept an appeal to resolve the issue in every state.
And, even more significantly, any decision the Supreme Court renders on the issue could well "control other federal laws barring sex discrimination," said Jon Davidson, national legal director for Lambda Legal Defense and Education Fund. That would include federal laws covering housing (the Fair Housing Act), health care and insurance (the Affordable Care Act), education, and credit.
The DOJ decision to oppose Title VII's reach to sexual orientation discrimination is the second Trump administration act to undermine LGBT protections in the workplace. In March, President Donald Trump revoked an executive order by President Barack Obama that required federal contractors to demonstrate they did not discriminate based on sexual orientation, gender stereotyping, or gender identity.
The DOJ brief in Zarda argues that Title VII should not provide LGBT protection in private or federal employment.
"The question presented is not whether, as a matter of policy, sexual orientation discrimination should be prohibited ..." stated the brief. "The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not as has been settled for decades."
In an email, DOJ spokeswoman Nicole Navas said, "This department remains committed to protecting the civil and constitutional rights of all individuals and will continue to enforce the numerous laws Congress has enacted that prohibit discrimination on the basis of sexual orientation." Ironically, in identifying those few laws it cited Obama's executive order that Trump revoked. It also noted that, "every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation."
And elsewhere, it argued, "Any efforts to amend Title VII's scope should be directed to Congress rather than the courts."
The chaotic backdrop
Suggesting a matter be resolved by Congress these days is tantamount to a yawn of indifference. The same week DOJ announced its position on Title VII, the Senate riveted the nation with its intense rancor over Republican-led efforts to repeal the Affordable Care Act. That effort ended in the early hours of Friday morning with Senator John McCain (R-Arizona) joining two other Republicans (Senators Susan Collins of Maine and Lisa Murkowski of Alaska) to sink the measure. With that spectacular failure and the fact that protecting LGBT people from discrimination has never been a priority or even a serious concern for the GOP, which controls the Senate and House, there is virtually no likelihood at present of having Congress amend Title VII.
On the same day that DOJ submitted its Title VII brief, Trump surprised everybody –including the Pentagon – by announcing that the military would no longer allow transgender people to serve "in any capacity." He devoted three Twitter posts to "advise" the world (presumably) that:
"After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender [sic] in the military would entail. Thank you."
General Joseph Dunford, chairman of the Joint Chiefs of Staff, was apparently unaccustomed to receiving orders from the commander in chief via Twitter. He told military personnel, "There will be no modifications to the current policy until the president's direction has been received by the secretary of defense and the secretary has issued implementation guidance. In the meantime, we will continue to treat all of our personnel with respect."
It was just one month ago that Defense Secretary James Mattis announced the military would take six more months to study the issue of transgender people in the military and propose a policy. Although the Hill newspaper reported an unidentified source at the White House as saying Trump advised Mattis of his own policy and timeline the day before he issued his Twitter post, it also reported that Mattis was "appalled" at Trump's action and had been "quietly lobbying Republicans" in Congress to defeat a GOP-led attempt to amend a spending bill to prohibit the armed services from paying for transgender-related medical treatment.
The brief
Right from the start, the DOJ brief (led by two acting assistant attorneys general) acknowledged that its position in the Title VII case is in opposition to the position taken by the EEOC. EEOC has said Title VII covers sexual orientation discrimination. But, said DOJ, EEOC "is not speaking for the United States ..." (EEOC is, according to its brief to the 2nd Circuit in Zarda, the "primary agency charged by Congress with interpreting and enforcing Title VII. ...")
DOJ also pointed out that, "until recently," the EEOC had said sexual orientation discrimination was not covered under sex discrimination. (EEOC now says it has simply corrected the commission's analysis of previous cases.)
"Discrimination" on the basis of "sex," argued DOJ, is treating some "similarly situated employees" "less favorably" on the basis of their being "biologically male or female."
Discrimination on the basis of sexual orientation, said the DOJ, "causes differential treatment of gay and straight employees for men and women alike." It noted that the 2nd Circuit, in the 2000 case Simonton v. Runyon, specifically ruled that there was no Supreme Court precedent for extending Title VII's "sex" to mean "sexual orientation."
Perhaps anticipating that the Zarda case could go to the Supreme Court, DOJ stated, "To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so. And more fundamentally, even unforeseen circumstances do not present courts with a license to 'rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done' to implement a clear statute's policy objectives."
DOJ's brief seemed to be anticipating numerous other LGBT-related cases that are heading to the Supreme Court. It argued that discrimination based on sexual orientation is not necessarily based on "sex" because it can also be based on "moral beliefs about sexual, marital, and familial relationships that need not be based on views about gender at all."
"That may be impermissible treatment under other statutes or rules, but it is not covered by Title VII's ban on 'sex' discrimination," stated the DOJ brief.
The brief also wanders off into the pending legal dispute over public bathrooms. ("One could just as easily, if not more easily, assert that 'the ultimate case of failure to conform to the female stereotype' is a woman's failure to use the woman's bathroom.")
And it stated that "an employer who discriminates against an employee in a same-sex relationship is not engaged in sex-based treatment of women as inferior to similarly situated men (or vice versa), but rather is engaged in sex-neutral treatment of homosexual men and women alike."
It is not unusual for the DOJ to offer its brief at the federal appeals court level. Obama's DOJ urged the 2nd Circuit that the federal Defense of Marriage Act was unconstitutional. Ultimately, that circuit and a majority of the U.S. Supreme Court agreed.
The Zarda lawsuit began in 2010, when a Long Island skydiving company called Altitude Express fired one of its instructors, Daniel Zarda. The company said it fired Zarda over a customer service problem; Zarda said it fired him because he disclosed to a jumper that he was gay. Zarda filed a lawsuit. And, though he died in a BASE jumping accident in 2014, his estate has carried on the litigation.