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Justice Department Files Brief Arguing Title VII Not Meant to Protect Gay Americans from Discrimination

— August 2, 2017

Last week, the Trump administration told a U.S. appeals court that federal laws protecting workers were never meant to shield gay Americans from discrimination.

The Department of Justice laid out its fiery rationale in a friend of the court brief submitted to the 2nd Circuit Court of Appeals in Manhattan last Wednesday. Reuters coverage of what amounts to a policy reversal indicates agency officials argued that Congress never intended Title VII – which bans sex discrimination in the workplace – to apply to gay workers.

The argument is the government’s take on a case filed in Long Island.

Skydiving instructor Donald Zarda accused his former employer, Altitude Express, of firing him because his sexuality.

“The essential elements of sex discrimination under Title VII [of the 1964 Civil Rights Act] is that employees of one sex must be treated worse than similar situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” wrote acting Justice Department Civil Division head Chad Readler and acting Civil Rights Division head Tom Wheeler in the amicus brief.

The agency pointed back to prior court cases in which judges ruled that ‘firing or discriminating against employees because they’re gay or lesbian does not violate federal law.’

However, as points out, the Supreme Court has never weighed in on the matter.

The Justice Department brief noted that multiple courts have ruled that sexual orientation isn’t necessarily protected by Title VII. Image courtesy of J. David Ike, AP, via Politico.

In recent years, judges in other jurisdictions have shown a willingness to interpret the law to protect the rights of gay Americans.

One example highlighted by Politico is an April ruling delivered by the U.S. 7th Circuit Court of Appeals, which is based in Chicago.

An 8-3 ruling determined that the court’s prior precedents regarding sex discrimination in the workplace should be overturned and that there are protections for LGBT citizens in federal law. Five of the judges who joined the majority opinion were Republican appointees.

Nevertheless, the Department of Justice isn’t issuing its brief baselessly – while the language of Title VII could be reinterpreted to include sexual orientation along with biological sex, such a classification would take some clever semantic structuring to achieve.

“When adopting Title VII’s ban on sex discrimination in 1964, and especially when amending it in 1991, Congress was well aware of the distinct practice of sexual orientation discrimination and chose not to ban it also,” reads the agency’s argument.

Despite the Justice Department’s rationale, its filing of an amicus brief in the Zarda case provoked a harsh condemnation from the American Civil Liberties Union.

“On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights. The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination,” said ACLU attorney James Esseks. “Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives.”


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