The deadline passed on Thursday to file before the U.S. Second Circuit Court of Appeals a friend-of-the-court brief in support of Arline Magnusson, a lesbian custodial worker who filed a lawsuit contending she faced employment discrimination in New York’s Suffolk County Department of Public Works that was unlawful under federal civil rights law.
The U.S. Equal Employment Opportunity Commission — the U.S. agency charged with enforcing federal employment law — and the LGBT group Lambda Legal filed briefs in the case. But a brief from the U.S. Justice Department representing the views of President Obama wasn’t among them.
LGBT rights have seen significant advances under the Obama administration, but the U.S. Justice Department has yet to say whether the ban on sex discrimination in the workforce under Title VII of the Civil Rights Act of 1964 applies to lesbian, gay and bisexual workers. With LGBT advocates continuing to call on the administration to declare the law prohibits sexual orientation discrimination, the request may be one of the few unanswered calls from the LGBT community before the end of the Obama administration.
Sarah Warbelow, legal director for the Human Rights Campaign, took a stance critical of the Obama administration — unusual for the nation’s largest LGBT group — and said she’s “surprised and disappointed” the Justice Department hasn’t made this assertion.
“We’re fortunate that at this exact moment, we don’t have a state that is engaging in the same level of discrimination against LGB people as it is against transgender people, but the Department of Justice really has an opportunity to weigh in on one of several court cases that are currently pending before the circuit courts — the 2nd Circuit, the 7th Circuit and the 11th Circuit — arguing that it is absolutely true that sexual orientation is a form of sex discrimination,” Warbelow said.
The Obama administration has already determined anti-trans discrimination is unlawful in the wake of Macy v. Holder, a 2012 EEOC decision that found existing federal civil rights law bars discrimination against transgender people in the workforce. In 2014, former U.S. Attorney General Eric Holder announced in a memo the Justice Department believes Title VII “encompasses discrimination based on gender identity, including transgender status.”
But the Justice Department hasn’t made the same announcement on sexual orientation discrimination even though last year the EEOC — which is generally given deference on Title VII — asserted the law bars anti-gay discrimination in the case of Baldwin v. Foxx, a case in which a former air traffic controller alleged he was passed over for a promotion at the Federal Aviation Administration for being gay.
For some time, LGBT advocates have been pressing the Obama administration to make the same determination. In March, the Human Rights Campaign sent letters to various federal agencies, including the Justice Department, urging them to adopt EEOC interpretations that anti-gay discrimination is barred under current law.
Warbelow said HRC “did not receive a formal response back from any of these agencies” although many of them have since published rules on issues that were the subject of the letters.”
“The rules that have been released to date do say and give examples that certain types of discrimination against LGB people can be a form of sex stereotyping, which is a violation of the law, but these regulations do not list sexual orientation as a protected characteristic in the same way they list gender identity,” Warbelow said.
For nearly two years, the Justice Department has had no comment in response to requests to comment from the Washington Blade on whether it believes anti-gay discrimination is prohibited under Title VII, including in response to an inquiry on whether the administration would file a brief in the Magnusson case or generally make that assertion before the end of President Obama’s tenure in office.
Under questioning from the Blade, White House Press Secretary Josh Earnest said on the day friend-of-the-court briefs were due in that case he hasn’t heard Obama “express a view, even in private, on that precise topic” of whether anti-gay discrimination is barred under current federal law.
“What I can tell you in general is the principle you’ve heard me give voice to on a number of occasions, and that simply is that the Obama administration is opposed to laws that are focused on trying to take freedom away from people,” Earnest added. “And we’ve been concerned about laws that, in some cases, seem focused mostly on legitimizing one form of discrimination or another. And that’s why you have seen the Justice Department take some of the actions that they’ve had to try to protect those freedoms.”
In contrast to the Obama administration, Hillary Clinton has committed herself in her LGBT campaign platform to “support efforts underway in the courts and federal government to clarify that under federal statutes ‘sex discrimination’ includes discrimination on the basis of ‘gender identity’ and ‘sexual orientation.'” Donald Trump hasn’t explicitly addressed the issue.
Tico Almeida, president of the LGBT group Freedom to Work, said the Justice Department should take the lead, rather than the Clinton campaign, on the issue in the final months of the Obama administration.
“It’s reassuring to know that Secretary Hillary Clinton has promised in writing that her administration would support legal efforts in federal court to confirm that sexual orientation discrimination is a form of sex discrimination already banned by the Civil Rights Act,” Almeida said. “Rather than waiting until next year, the Justice Department should take a strong stand now.”
Warbelow said a declaration from the Justice Department on anti-gay discrimination during the months that remain in the Obama administration would be more than just window dressing because the voice of the federal government is “very influential” in the legal system.
“If we were to prevail in any one of these circuits, it increases the likelihood that LGB people will be able to sue to protect themselves from discrimination,” Warbelow said. “Down the road, this will have implications not just for employment, which is what’s sort of on the table at the moment, but it’ll have implications for discrimination in housing, for discrimination in credit, for discrimination in education.”
One thing that might be keeping the administration silent: Although a growing number of courts are concluding sexual orientation discrimination constitutes unlawful gender discrimination under Title VII, no federal appeals court has made this decision. In fact, the U.S. 7th Circuit Court of Appeals as recently as July ruled against this idea, although the three-judge panel wrote that decision was based on precedent and the idea anti-gay bias is separate from gender bias “seems illogical to entertain.”
Meanwhile, multiple circuit courts reached that conclusion for transgender discrimination before the Justice Department announced a similar view. (Side note: U.S. Circuit Judge William Pryor, who’s on Trump’s list of potential judicial picks, was among the judges who reached this conclusion in the 11th Circuit, although Democrats have excoriated him for filing an anti-gay brief before the U.S. Supreme Court in 2003 comparing homosexuality to illegal acts like bestiality, necrophilia and possession of child pornography.)
Warbelow indicated a circuit court ruling sexual orientation discrimination is likewise covered under current law could be influential in moving the Obama administration.
“Certainly, the moment that a circuit court rules that sexual-orientation discrimination is a form of sex discrimination, HRC and…many of our partner organizations will be writing letters and on the phone with agencies across the federal government letting them know the news immediately,” Warbelow said.
One opportunity for the Obama administration to assert anti-gay discrimination is prohibited under current law is filing a friend-0f-the-court brief in ongoing cases alleging anti-gay discrimination in the workforce.
The Justice Department has taken that action in lawsuits alleging transgender discrimination, such as the case of Gavin Grimm, a transgender student suing a Virginia school to use the public restroom consistent with his gender identity. The lawsuit U.S. Attorney General Loretta Lynch filed this year against North Carolina’s anti-LGBT House Bill 2 is also based on the premise anti-trans discrimination is unlawful under Title VII.
But the U.S. Justice Department has ignored multiple opportunities to assert in a legal filing anti-gay discrimination in the workforce is illegal: In addition to the missed deadline on Thursday, the Obama administration missed an opportunity in June to file a brief in a separate case before the Second Circuit. Meanwhile, 127 congressional Democrats staked out that view in a friend-of-the-court brief in support of the idea Title VII bars anti-gay discrimination.
Even without a pending lawsuit, the Justice Department could assert anti-gay discrimination is illegal under Title VII through a separate formal declaration much like the memo Holder issued to declare anti-trans bias is prohibited under the law. That might be the last chance for the Obama administration to make the assertion in the short time remaining in Obama’s tenure in the White House.
Warbelow said friend-of-the-court briefs from the Obama administration would be welcome, but expressed a preference for an overarching memo that would articulate a stand against anti-gay discrimination.
“We would very much want to see them follow the legal reasoning, as laid out in the Baldwin case, updated in the way that we provided in our letters to demonstrate subsequent case law,” she said.