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DOJ Brief Supports 2nd Circuit Ruling On Sexual Orientation

Trump administration is drawing battle lines on LGBT issues

Contradicting campaign rhetoric about being an ally to the LGBT community, the Trump administration has thrown down the gauntlet on sexual orientation in the workplace and transgender individuals in the military. The Department of Justice has filed an amicus brief in support of a 2nd Circuit decision that Title VII does not extend to gay and lesbian employees. In the same week, President Trump declared that the U.S. armed forces will no longer allow transgender citizens to serve in any capacity.

Attorney General Jeff Sessions notes that Congress has repeatedly declined to specifically amend the Civil Rights Act to include sexual orientation. Presumably, the administration will take the same stance on transgender discrimination, arguing that gender identity and non-conforming gender expression are not expressly protected under Title VII.

Will “sex discrimination” be redefined?

Title VII of the Civil Rights Act of 1964 outlawed discrimination on the basis of sex, race, color, national origin and religion.

  • In the 1980s, the Equal Employment Opportunity Commission and later the Supreme Court interpreted sex discrimination under Title VII to apply to workplace sexual harassment. Those protections have since been codified by Congress.

  • Under the Obama administration, the EEOC and DOJ took the stance that sexual orientation discrimination was prohibited under Title VII. But neither Congress nor the Supreme Court have locked that in. Earlier this year, the 7th Circuit ruled that federal law bans gay/lesbian discrimination while the 11th Circuit declined to hear a similar case, allowing an anti-LGBT ruling to stand. Both cases have been appealed to the Supreme Court. In the 2nd Circuit case, a panel of judges upheld a lower court ruling, but the full 2nd Circuit has agreed to an en banc review, which prompted the DOJ’s amicus brief.

  • In 2014, President Obama’s attorney general issued a memo extending Title VII to gender identity, declaring it illegal to discriminate on the basis of transgender status. To date there is little legal precedent on this issue.

A one-two punch to the LBGT community

Under the Trump administration, the Department of Justice appears to be reverting to the narrowest interpretation of “sex” in Title VII as gender discrimination (i.e., refusing to hire women). The DOJ weighed in on a New York employment discrimination case, filing an amicus brief in support of a Long Island skydiving company that fired an instructor after he told a customer he was gay. The brief argues that nothing in Title VII precludes employers from discriminating on the basis of sexual orientation. More ominously, the DOJ brief contends that the federal government, as the largest employer in the U.S., has a “substantial and unique interest” in clarifying Title VII.

Nearly simultaneously, President Trump abruptly declared that transgender individuals are not welcome in the U.S. military. Without court precedent or congressional action, public policy and department memos of the previous administration offer thin protection.

What does this mean for people in the trenches?

Any attempt to ban or oust transgender service members or deny them honorable discharge or veterans’ benefits will be vehemently challenged. That could lead to an eventual Title VII showdown under a conservative-leaning Supreme Court. For the time being, gay, lesbian and transgender federal employees are explicitly protected from discrimination, though these recent developments are a disturbing omen that the White House may try to repeal those rules.

LGBT employees in the private sector have more reason to be nervous, because current protections are spotty or limited, but LGBT employees in federal jobs are certainly on alert that hard-won rights could be in jeopardy.

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