Justice Department Says Gays Aren't Protected by Civil Rights Act

Jeff Sessions

Jeff Sessions

The legal issue now before the appeals court is whether the 1964 Civil Rights Act's prohibition on employment discrimination on the basis of sex also protects people from discrimination based on their sexual orientation.

The Trump administration contends that "the essential element of sex discrimination under [civil rights law] Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect".

Donald Zarda, a skydiving instructor who passed away in 2014, filed a lawsuit against his employer alleging that they had fired him because of his sexual orientation. Zarda died in a skydiving accident before the case went to trial and is now represented by his estate.

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. The case is now before a federal appeals court. The word, which shows up at least 7 times in the DOJ's brief to refer to gay men and lesbians, is often perceived as a dog whistle for homophobes.

Trump's Justice Department has argued the 1964 Civil Rights Act does not protect LGBTI people from discrimination.

Some judges have previously ruled that discrimination based on sex and sexual orientation can not be easily differentiated because unfairly disadvantaging someone as a result of their sexual preferences is based on a stereotype of how their gender should behave.

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"Market forces are rapidly driving major employers to adopt such anti-discrimination policies even where not required by law", the conservative groups said.

"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", the Department of Justice stated in its brief.

Civil rights advocates criticized the filing not only for its arguments, but also for having been made on the same day that President Trump announced on Twitter that transgender people would be banned from serving in the military.

The second argument is that sex stereotyping counts as sex discrimination. After a lower court ruled and the case was appealed, the 2nd Circuit invited outside parties to contribute. All this would seem to run counter to the landmark ruling that brought marriage equality, but that was a split decision and enemies of equal rights for gay people haven't given up trying to upend that and all other protections for gay people.

"The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination".

Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.

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