In most of the US, it isn’t explicitly illegal under federal law for an employer to fire someone just because he’s gay or bisexual. And President Donald Trump’s Department of Justice is working to keep it that way.
On Wednesday, the Justice Department, led by Attorney General Jeff Sessions, filed a friend-of-the-court brief at the US Court of Appeals for the Second Circuit arguing that Title VII of the Civil Rights Act of 1964 doesn’t prohibit discrimination based on sexual orientation.
The Justice Department’s filing contradicts the stance of another federal agency, the Equal Employment Opportunity Commission (EEOC), which argues that the Civil Rights Act does protect gay and bisexual workers. Previously, the US Court of Appeals for the Seventh Circuit also supported the pro-LGBTQ argument.
“The theories advanced by the EEOC and the Seventh Circuit lack merit,” the Justice Department’s brief said. “These theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.”
The lawsuit behind the case was filed by Donald Zarda, a skydiving instructor who says an employer, Altitude Express, fired him due to his sexual orientation. It’s not unusual for other parties to chime into cases like this.
The argument goes into an ongoing legal battle over the 53-year-old Civil Rights Act. LGBTQ advocates argue that Title VII, which bans sex discrimination in the workplace, also bans discrimination based on sexual orientation and gender identity, because such discrimination is rooted in the expectations of how a person of a certain sex should act or identify. Since federal law doesn’t explicitly ban discrimination against LGBTQ people, this would effectively amount to an expansion of whom federal nondiscrimination law protects.
The Obama administration supported this argument for gender identity, arguing that the Civil Rights Act protects transgender people. It never embraced the argument for sexual orientation, but at least during the past year, it hadn’t taken an explicit stance against such legal cases.
Under Trump and Sessions, the Justice Department is now actively working against these arguments. If the agency prevails, it will perpetuate a status quo in which gay and bisexual people can be fired solely because an employer doesn’t approve of their sexual orientation. And it could try to apply the same stance on gender identity, letting employers discriminate against trans people.
The Justice Department’s brief is also the latest example of the Trump administration actively working against LGBTQ rights, from rescinding protections for trans students in public schools to banning trans people from the military. Although it contradicts some of Trump’s campaign promises, anti-LGBTQ policy now seems like a major part of the president’s agenda.
Most states don’t explicitly ban anti-LGBTQ discrimination
Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (such as restaurants, hotels, and other places that serve the public). This means that someone can be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity.
But federal and state laws do ban discrimination based on race, religion, nationality, and sex in the workplace, schools, and other settings. This is what the Civil Rights Act and other federal and state civil rights laws that followed were about.
Civil rights advocates claim, however, that federal law should already shield LGBTQ people from discrimination, because, they say, bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.
According to advocates, discrimination against people based on their sexual orientation or gender identity is fundamentally rooted in prohibited sex-based expectations. For example, if someone discriminates against a gay man, that’s largely based on the expectation that a man should only love or have sex with a woman — a belief built on the idea of what a person of a certain sex should be like. Similarly, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — again, a belief built on the idea of what a person of a certain sex assigned at birth should be like.
On the other side, opponents argue that LGBTQ nondiscrimination protections aren’t included in existing federal civil rights laws, because the authors of federal civil rights laws never believed or intended that bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.
LGBTQ advocates, citing legal precedent, say that what the original laws’ authors believe or intended is irrelevant. Joshua Block, an attorney with the ACLU LGBT and HIV Project, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.
“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”
One catch: Even if courts conclude that statutory bans on sex discrimination do prohibit discrimination based on sexual orientation and gender identity, under federal law that would only create explicit protections in the workplace, housing, and schools — but not public accommodations. That’s because federal civil rights laws don’t ban sex discrimination in public accommodations, leaving a hole in nondiscrimination laws at the federal level for LGBTQ rights.
Although the Seventh Circuit Court and EEOC agree with this argument, the Justice Department doesn’t — and its stance is just another way the Trump administration is working against LGBTQ rights.
Trump keeps letting down LGBTQ people
On the campaign trail, Trump said he would be different — the first Republican president to embrace LGBTQ people. He said the key acronym (“L, G, B, T … Q”) at the 2016 Republican convention. He held up a Pride flag at a campaign event. He initially defended the right of Caitlyn Jenner, a transgender woman, to use the bathroom that aligns with her gender identity. He tweeted, “Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.”
Yet while he decided to maintain workplace protections against discrimination based on sexual orientation and gender identity for federal employees and contractors, the rest of his personnel and policy actions have signaled an anti-LGBTQ approach.
For one, the administration is largely made up of politicians who have been staunchly anti-LGBTQ for their whole public careers, like Vice President Mike Pence and Sessions. Both men have long histories in Congress of opposing civil rights measures for LGBTQ people, including workplace protections and hate crime laws — yet they have major roles in shaping the administration’s agenda.
Earlier this year, the Trump administration also rescinded transgender protections for kids in federally funded schools. That reversed a guidance from the Obama administration that asked publicly funded K-12 schools to respect and protect trans students’ rights, including their ability to use the bathroom and locker room that align with their gender identity.
And on Wednesday, Trump said he would reinstate a ban on transgender military service. He tweeted that he would ban trans military service because “[o]ur military must be focused on decisive and overwhelming … victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.” (Still, the Department of Defense has not confirmed how this will be implemented.) There is no basis for Trump’s claim; the research, based largely on the experience of countries like Israel and Canada that allow trans military service, shows that allowing trans people to serve openly has little to no effect on military readiness or costs.
Trump also seems ready to go even further. He has said, for example, that he would support the First Amendment Defense Act, which would allow discrimination against LGBTQ people on a religious basis. And there have long been rumors — although they have yet to be substantiated — that Trump will sign a “religious freedom” order that will allow anti-LGBTQ discrimination.
Altogether, this paints a very different picture of Trump than we saw on the campaign trail. And more than just showing Trump’s dishonesty, the shift threatens the rights of millions of LGBTQ Americans — from those just trying to keep their jobs to those who are willing to sacrifice their lives in service of their country.