Department of Justice Launches Attack on LGBTQ Civil Rights

Department of Justice Launches Attack on LGBTQ Civil Rights

Following the Twitter announcement that the transgender community will no longer be able to serve in the military, the Trump administration (via the Department of Justice) submitted a legal brief yesterday attacking the legitimacy of LGBTQ civil rights. The DOJ submitted the amicus brief in a case about Civil Rights Act Title VII protections in a case where the plaintiff argues LGBTQ workers are covered by the longstanding federal rights law.

In the case (Zarda v. Altitude Express), the question of whether sexual orientation discrimination is a form of sex discrimination sits front and center. It relies on a precedent established two years ago where a federal court ruled “claims of sexual orientation discrimination are gender stereotype or sex discrimination claims…”

Though unrelated explicitly to education (as the precedent was), Zarda does involve sexual orientation based employment discrimination. Lambda Legal has a brief run down the case:

In September 2010, Zarda, a skydiver, filed a lawsuit in U.S. District Court for the Eastern District of New York against his former employer, Altitude Express, Inc, alleging that the company violated the Civil Rights Act by discriminating against him because of his sexual orientation. The district court rejected his claim, saying that the Civil Rights Act does not protect him for bias he endured for being a gay man. Tragically, in October 2014, Zarda died in a base jumping accident in Switzerland.

In January 2017, Gregory Antollino argued an appeal on behalf of Zarda’s estate asking a three judge panel of the Second Circuit to revisit its precedent and hold that sexual orientation discrimination is a form of sex discrimination and therefore illegal under the Civil Rights Act. The three-judge panel denied Zarda’s claim in April 2017, but held that Zarda would be entitled to a new trial if the full Second Circuit agreed with his arguments about Title VII of the Civil Rights Act.

In May 2017 the U.S. Court of Appeals for the Second Circuit granted en banc review of the case.

Several organizations with a horse in the race submitted amicus briefs including Lambda Legal and the ACLU. Additionally, the Equal Employment Opportunity Commission (EEOC) submitted a brief agreeing with the plaintiff’s position – something the Trump DOJ seemingly disagrees with.

The EEOC – a mostly independent federal agency that deals specifically with workplace discrimination – said in part in their brief:

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal addresses whether claims of sexual orientation discrimination are cognizable under Title VII as claims of sex discrimination. Because such claims necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping, the EEOC believes they fall squarely within Title VII’s prohibition against discrimination on the basis of sex.

Though they had no compelling reason to submit a brief, Trump’s DOJ nonetheless submitted a brief using outdated labels (“homosexuals”) and arguments typically found in far-right conservative amicus briefs popular two decades ago. Here are some of the more suspect sections from the DOJ brief:

Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers, 42 U.S.C. 2000e-5(f)(1), and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.

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. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.

Title VII prohibits an employer from discriminating against an employee in an interracial relationship, not because that constitutes “associational discrimination” as such, but rather because that constitutes discrimination against the “individual [employee] * * * because of such individual’s race.” 42 U.S.C. 2000e-2(a). In particular, the employer is treating an employee of one race differently from similarly situated employees of the partner’s race, solely because the employer deems the employee’s own race to be either inferior or superior to the partner’s race. For example, in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), this Court held that a white employee could bring a claim that he was treated worse for marrying a black woman, as that was discrimination “because of the employee’s own race,” especially in light of evidence that he himself was “insult[ed] * * * in public” as “a [n-word] lover.” Id. at 134, 138-40. By contrast, 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.

The last section is pertinent for two reasons:

  1. It references disparate treatment in marriage based on race (something covered in Loving v Virginia) to make its case and
  2. It uses the argument the state used in Loving to argue against considering sexual orientation a valid discrimination category.

IIT Chicago-Kent law professor Anthony M. Kreis noted this offering his opinion on the brief stating on Twitter, “The DOJ embraces the theory Va did in Loving v. Virginia–employers who hate gay couples dislike lesbians and gay men equally. So it’s okay.”

In another tweet, he added, “The DOJ thinks sexual orientation is unrelated to the sex of the persons you form intimate relationships with and any social constructs.”

Buzzfeed’s Dominic Holden added context to the DOJ’s brief noting the unusual nature of its existence and the lengths the administration had to go to in order to attack LGBTQ civil rights:

The Trump administration’s filing is unusual in part because the Justice Department isn’t a party in the case, and the department doesn’t typically weigh in on private employment lawsuits.

If Zarda’s argument were to prevail — despite his death in a base-jumping accident in 2014 — it would set new precedent in the circuit by overturning two cases from the 2000s.

Further, it would give momentum to the argument as a general matter, given that in April the 7th Circuit ruled in favor of a lesbian who made the same claim.

Under Sessions, the Justice Department has pushed back against the EEOC’s view and that court decision. “The theories advanced by the EEOC and the Seventh Circuit lack merit,” the brief on Wednesday said. “These theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.”

Several LGBT activists had worried the Justice Department would unleash a more sweeping claim that gender-identity discrimination isn’t covered under the Title VII as well — but the brief doesn’t explicitly speak to that issue.

Despite not explicitly speaking to the issue, LGBTQ civil rights advocacy organizations are nonetheless worried about the DOJ’s intervention in the case.

Human Rights Campaign (HRC) Legal Director Sarah Warbelow issued a statement saying:

“Attacks against the LGBTQ community at all levels of government continue to pour in from the Trump-Pence Administration. In one fell swoop, Trump’s DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act, Title IX, or Title VII. For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’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.”

They’re right to worry as the DOJ’s interpretation of the Civil Rights Act extends much further than workplace discrimination. The administration already rolled back Obama-era guidance on Title IX’s student protections arguing they do not protect transgender students. Now that the DOJ is going after LGBTQ workplace rights, a clear pattern is emerging.

The Washington Post noted this reporting:

The question has implications well beyond employment law, particularly in education. Title IX of the Education Amendments of 1972, a powerful weapon against discrimination, is generally interpreted in sync with rulings on the employment discrimination law. That’s how the Obama administration justified its controversial efforts to enforce bathroom and locker room equity for transgender students.

If there was any doubt Donald Trump and his administration are not allies to the LGBTQ community, this unnecessary, mean-spirited brief should dispel all confusion.

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Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he's worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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