December 2, 2016 at 5:18 pm EDT | by Chris Johnson
Obama administration still won’t say if anti-gay bias unlawful
Eric Schultz, gay news, Washington Blade

White House Principal Deputy Press Secretary Eric Schultz declined to say if Title VII makes anti-gay bias unlawful. (Washington Blade photo by Michael Key)

In the aftermath of a hearing before the U.S. Seventh Circuit Court of Appeals on whether sexual orientation discrimination constitutes gender discrimination under Title VII, the White House and the U.S. Justice Department are still unable to say whether bias against gay, lesbian and bisexual people is barred under current law.

Under questioning from the Washington Blade, White House Deputy Press Secretary Eric Schultz said Friday he was unsure if President Obama was aware of the proceedings, nor would Schultz say whether Obama agrees with the premise of the litigation, which seeks to affirm discrimination against gay, lesbian and bisexual people violates Title VII of the Civil Rights Act of 1964.

“I have not spoken to the president about this case, so I’m not how closely he is tracking,” Schultz said. “Generally speaking, since it’s clearly in litigation, there’s only so much I can say, but generally speaking the president believes that equality is a fundamental right. It’s not only a strong tradition and custom in the United States, it’s enshrined in our Constitution. So, he believes there’s no place — both in government or outside — for discrimination, and that’s a principle that he’s fought for and that’s animated his entire career in public service.”

The Seventh Circuit on Wednesday held an “en banc” rehearing of a lawsuit filed by Lambda Legal on behalf of Kimberly Hively, an Indiana math instructor who was allegedly denied a promotion at Ivy Tech Community College and ultimately fired for being a lesbian. The lawsuit seeks restitution under Title VII of the Civil Rights Act of 1964 on the basis the law’s prohibition on gender bias applies to cases of sexual orientation discrimination.

The Obama administration — through the U.S. Justice Department — has articulated in the form of a memo from former U.S. Attorney General Eric Holder to Congress the belief that anti-trans bias is barred under Title VII, but has no statement with regard to whether that law applies to gay, lesbian and bisexual people.

The Holder memo was based on a ruling from the 2012 U.S. Equal Employment Opportunity Commission in the case of Macy v. Holder asserting anti-trans discrimination is illegal under Title VII. The EEOC made a similar declaration last year for sexual orientation discrimination under the law in the case of the Baldwin v. Foxx, but the administration hasn’t followed suit with a similar declaration.

Asked why Obama hasn’t built on his LGBT rights record by articulating as a constitutional lawyer that discrimination against gay, lesbian and bisexual people is unlawful, Schultz deferred to the Justice Department.

“If we have something to add to this case, that would come out of the Department of Justice, so you should check in with them to see if they’ve offered anything,” Schultz said. “I don’t have any new announcements or positions from here.”

For years, the Justice Department refused to comment on repeated inquiries from the Washington Blade on whether the administration believes anti-gay bias is barred under Title VII of the Civil Rights Act. A spokesperson earlier this week declined to comment on the case before the Seventh Circuit and didn’t respond to a request for comment Friday.

The Seventh Circuit didn’t invite any supplemental briefing for the Justice Department to provide input in the case pending before the court. If the full court rules in favor of Hively, it would become the first federal appeals court to determine discrimination against gay, lesbian and bisexual people is prohibited under current law.

Schultz had no comment when asked if Obama would welcome a declaration from the Justice Department asserting sexual orientation discrimination constitutes gender discrimination under current law.

“Typically those kinds of decisions are made at the Department of Justice by career prosecutors and career litigants, so we’re going to let them make those decisions, but if they have anything, they should be able to get it you, and then if there’s additional comment from here, we’ll make sure we reach out,” Schultz said.

In the aftermath of Donald Trump’s election, LGBT people without a defender in the White House may have to rely independently on Title VII as their only recourse for combatting discrimination. LGBT advocates, including the Human Rights Campaign and Freedom to Work, have called on the administration before Obama leaves office to declare that discrimination against gay, lesbian and bisexual people is unlawful under current law.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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