BY CHRIS JOHNSON, WASHINGTON BLADE
The U.S. Justice Department under U.S. Attorney General Jeff Sessions is set to file a brief undermining efforts to ensure LGBT people are protected from discrimination under current federal civil rights law, according to two outside sources familiar with the effort.
Although LGBT groups — and a growing number of courts — are taking the view the prohibition on sex discrimination in employment under Title VII of the Civil Rights Act of 1964 also bars discrimination against LGBT people, sources say the Justice Department will file a brief in an employment discrimination case before the U.S. Second Circuit Court of Appeals opposing that view.
James Esseks, director of the ACLU’s LGBT and HIV Project, told the Washington Blade the Trump administration filing such a brief would be going out of its way to undermine LGBT rights.
“This would be a gratuitous and extraordinary attack on LGBT people’s civil rights,” Esseks said. “DOJ would be reaching out to offer its opinion on these issues, since they are not a party to this case. That’s not championing LGBT people, it’s working affirmatively to expose us to discrimination. But fortunately, whether the Civil Rights Act protects LGBT people is ultimately a question for the courts to resolve, and not for the attorney general. We are confident that the courts will come to the right decision here.”
The case is known as Zarda v. Altitude Express and the plaintiff is the estate of deceased New York skydiver Donald Zarda, which alleges he was fired from his job in 2010 for being gay. Although a three-judge panel on the Second Circuit in April determined Title VII doesn’t prohibit anti-gay discrimination, and therefore doesn’t apply to Zarda’s case, the court at the request of Lambda Legal has agreed to reconsider the ruling “en banc,” or before the full court.
Before the deadline of Wednesday at close of business, sources say the Justice Department intends to file a friend-of-the-court brief that would affirm the view of the three-judge panel and argue the prohibition of sex discrimination under Title VII doesn’t prohibit discrimination on the basis of sexual orientation.
Additionally, sources say DOJ is going to take the opportunity to argue Title VII also doesn’t prohibit discrimination based on gender identity — even though transgender discrimination isn’t at issue in the case.
Such a brief would reverse a position under former U.S. Attorney Eric Holder asserting discrimination on the basis of gender identity is prohibited under Title VII. In a 2014 memo, Holder wrote the Justice Department will no longer assert Title VII’s prohibition on gender discrimination “does not encompass gender identity per se (including transgender discrimination).”
Although the Justice Department under the Obama administration never took an official view on whether sexual orientation discrimination is prohibited under Title VII, a brief arguing against the idea LGBT people are protected under Title VII would effectively turn a Justice Department that once argued for protections for LGBT people into an institution that seeks to undermine them.
The brief would be inconsistent with significant case law affirming discrimination based on transgender status is prohibited under Title VII. Four federal appellate courts — the First, Sixth, Ninth and Eleventh circuit courts of appeals — have determined employment discrimination against transgender people is barred under the law.
Although case law that has determined Title VII bars workplace discrimination against lesbian, gay and bisexual people is less developed, some courts are reconsidering decisions made in past decades against protections based on sexual orientation.
The Seventh Circuit determined earlier this year in the case of Hively v. Ivy Community College that sexual orientation discrimination constitutes sex discrimination under Title VII, but the Eleventh Circuit came to the opposite view. Lambda Legal is preparing to submit a petition before the U.S. Supreme Court seeking a nationwide affirmation that anti-gay workplace discrimination is barred under current law.
The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment non-discrimination law, determined transgender people are protected under Title VII in its 2012 ruling in Macy v. Holder and lesbian, gay and bisexual people are protected under the law in its 2015 decision in Baldwin v. Foxx.
Even though the Justice Department brief would be restricted to an interpretation of law related to employment, it could have implications for other federal laws barring sex discrimination in housing and education and seems to be at odds with the position of the Education Department.
Although the Justice Department and the Education Department agreed to revoke Obama-era guidance assuring transgender kids access to the restroom consistent with their gender identity under Title IX of the Education Amendments of 1972, the Education Department issued a memo declaring the administration may take up complaints filed by transgender students as incidents of sex discrimination outside of the bathroom issue.
A Justice Department spokesperson declined to comment for this article.