Congressional Democrats on Tuesday asserted discrimination based on sexual orientation is illegal under current civil rights law — a position the Obama administration has yet to take.
Led by Rep. David Cicilline (D-R.I.) in the U.S. House and Sens. Jeff Merkley (D-Ore.) and Tammy Baldwin (D-Wis.) in the Senate, 127 congressional Democrats stake out that view in a friend-of-the-court brief in a support of a lawsuit before the U.S. Second Circuit Court of Appeals alleging anti-gay workplace discrimination.
“Different interpretations of Title VII have led to uncertainty in the workplace and left LGBT Americans inconsistently protected from workplace harassment and discrimination, despite applicable federal law,” the brief states. “We firmly believe that Title VII’s sex discrimination provision already prohibits discrimination based on an individual’s sexual orientation and gender identity, and we urge the Court to overrule erroneous Second Circuit precedent to the contrary.”
The 40-page brief argues discrimination based on sexual orientation is prohibited under language in Title VII of the Civil Rights Act of 1964 against gender bias in the workplace. That’s the interpretation of the law by the U.S. Employment Employment Opportunity Commission, which staked out that position last year in the case of Baldwin v. Foxx.
The lawmakers leading the brief are the same who led the introduction in Congress of the Equality Act, pending legislation that would explicitly prohibit discrimination on the basis of sexual orientation and gender identity in all areas of federal civil rights law. According to the brief, lawmakers are seeking a “belt and suspenders” through passage of additional legislation and asserting Title VII prohibits discrimination based on sexual orientation and gender identity.
“[T]he Equality Act would amend Title VII to explicitly include ‘sexual orientation’ and ‘gender identity’ as protected characteristics alongside ‘sex,’” the brief says. “We believed this would help clarify the statute for the average American who would look at its text without the benefit of legal experience or a repository of case law.”
Other signers of the brief are House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) as well as Sen. Tim Kaine (D-Va.), Al Franken (D-Minn.) and Dianne Feinstein (D-Calif.).
“No person should suffer discrimination because of who they are or who they love,” Pelosi said. “We must ensure that LGBT people have the full protection of the law in the workplace – and everyplace. That’s why the Congress must also pass the Equality Act, to finally end discrimination in employment, education, housing, credit, jury service, and public accommodation for LGBT people by asserting the full power of the Civil Rights Act that guards our democracy.”
But while congressional Democrats filed a brief asserting anti-gay discrimination is prohibited under current law, the Justice Department didn’t submit a filing — nor has it asserted sexual-orientation discrimination under Title VII is unlawful.
The Justice Department had no comment in response to an inquiry from the Washington Blade on why the department didn’t file a brief. The White House didn’t respond to a request to comment on whether President Obama, a constitutional scholar, believes anti-gay discrimination is illegal under current law.
Although the Obama administration hasn’t declared sexual orientation discrimination is illegal under current law, former U.S. Attorney General Eric Holder did inform Congress the administration intends to enforce federal prohibition on gender discrimination in cases alleging bias against transgender people.
The Justice Department has acted on that pledge by filing a lawsuit against Southeastern Oklahoma State University for alleging engaging in anti-trans workplace discrimination and filing a friend-of-the-court brief on behalf of Gavin Grimm, a transgender student in Virginia seeking to use the public restroom consistent with this gender identity.
While both the EEOC and multiple courts have determined discrimination against transgender people violates prohibitions on gender bias in federal statute, the case law asserting discrimination based on sexual orientation is currently unlawful is more thin. Still, courts are beginning to make that determination.
In her LGBT platform, presumptive Democratic presidential nominee Hillary Clinton has asserted she would support efforts in the courts to clarify laws against gender discrimination apply to LGBT people. Her rival, presumptive Republican presidential nominee Donald Trump, hasn’t commented on the issue.
Tico Almeida, a gay civil rights attorney and president of the LGBT group Freedom to Work, lambasted the U.S. Justice Department for declining to file a brief before the Second Circuit.
“It’s time for the lawyers at the Justice Department to make a decision about whether they support the many gay, lesbian and bisexual Americans who have filed recent federal court lawsuits challenging workplace had housing discrimination based on Title VII of the Civil Rights Act and the Fair Housing Act,” Almeida said. “The Justice Department has litigated aggressively and admirably in North Carolina and across the country to combat discrimination against transgender Americans, and it’s time for the same legal push based on existing law to end discrimination based on sexual orientation. There’s no doubt our President Barack Obama has earned an historic legacy on LGBT fairness, and this sluggishness from the Justice Department does not match the sterling Obama LGBT record of accomplishment.