BY CHRIS JOHNSON, WASHINGTON BLADE
The U.S. Justice Department has declared anti-gay discrimination is lawful under current federal civil rights law, filing an friend-of-the-court brief in a case of alleging employment discrimination.
In a 23-page brief, the Justice Department under U.S. Attorney General Jeff Sessions rejects the notion that sexual-orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.
“The essential element of sex discrimination under 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,” the brief says. “Moreover, whatever this Court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination. Other statutes and rules may prohibit such discrimination, but Title VII does not do so as a matter of law, and whether it should do so as a matter of policy remains a question for Congress to decide.”
The brief is signed by Chad Readler, acting assistant attorney general for the Civil Division; Tom Wheeler, acting assistant attorney general for civil rights; Deputy Assistant Attorney General Hashim Mooppan; and Justice Department attorneys Charles Scarborough and Stephanie Marcus.
The Justice Department brief was expected. Outside sources familiar with the department’s plan informed the Washington Blade earlier this week a brief would be forthcoming in a case alleging anti-gay workplace discrimination before the U.S. Second Circuit Court of Appeals.
However, the Justice Department was expected not only to reject the idea that anti-gay discrimination is covered under Title VII, but also transgender discrimination. The brief ultimately avoids the issue of discrimination based on gender identity, although its reasoning could apply to cases of transgender discrimination.
The brief is filed on the same day President Trump announced on Twitter he’d reinstitute the ban prohibiting openly transgender people from serving in the armed forces. Coupled together, the brief and the president’s tweets span moves enabling discrimination across the entire LGBT community.
James Esseks, director of the ACLU’s LGBT and HIV Project, quipped upon review of the brief, “Trump and Sessions together have made it Anti-LGBT Day for the administration.”
The brief is just the view of the Trump administration and has no binding effect. Whether or not anti-gay discrimination will be considered lawful under Title VII is up the Second Circuit.
More to come.