A group of 62 Democrats from both chambers of Congress is blasting the U.S. Justice Department for a recent court filing arguing lesbians, gays and bisexuals have no protections under existing federal civil rights law.
In a letter dated Aug. 7 and made public Tuesday, the lawmakers assert the Justice Department’s recent friend-of-the-court brief in the case of Zarda V. Altitude Express is “not only contrary to existing law, but violates our nation’s ideals of liberty and justice for all.”
The missive was led by Rep. David Cicilline (D-R.I.), who’s gay and a co-chair of the LGBT Equality Caucus, and Rep. Frank Pallone (D-N.J.).
“Any discrimination is completely unacceptable,” the letter says. “It tears at the fabric of our great nation and does not move us forward; it takes us backward. We urge the Department of Justice to reverse its position and to refrain from arguing against protections for LGBT people in any future Title VII cases dealing with the issue of whether sex discrimination includes discrimination based on sexual orientation or gender identity.”
Late last month, the Justice Department under U.S. Attorney General Jeff Sessions argued in a voluntary filing before the U.S. Second Circuit Court of Appeals that Title VII of the Civil Rights Act of 1964 affords no protections against sexual orientation discrimination.
As the letter points out, that reasoning is contrary to the decisions of a growing number of district courts as well as the U.S. Seventh Circuit Court of Appeals, which have determined Title VII’s prohibition on sex discrimination in the workplace applies to cases of discrimination against lesbian, gay and bisexual people.
“This reflects a growing consensus that discrimination against people based on their sexual orientation cannot be understood without reference to sex,” the letter says. “To argue the opposite defies any reasonable interpretation of what sex discrimination means.”
The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment non-discrimination laws, has also found sexual orientation discrimination is a form of sex discrimination under Title VII.
However, the U.S. Eleventh Circuit Court of Appeals has determined existing law against sex discrimination affords no protections to lesbian, gay and bisexual people. That has created a split among the circuit courts and prompted the LGBT legal group Lambda Legal to plan to petition the U.S. Supreme Court for a nationwide resolution to the issue.
Notably, most of the seven openly LGB members of Congress who are also co-chairs of the LGBT Equality Caucus didn’t sign the letter. Names that are absent are Reps. Jared Polis (D-Colo.), Mark Takano (D-Calif.), Mark Pocan (D-Wis.) and Kyrsten Sinema (D-Ariz.). The only gay members of Congress who signed the letter were Cicilline, Rep. Sean Patrick Maloney (D-N.Y.) and Sen. Tammy Baldwin (D-Wis.)
The Washington Blade has placed a request with the Justice Department seeking comment on the congressional letter.