July 25, 2017 at 6:17 pm EDT | by Chris Johnson
DOJ set to reject LGBT workplace protections under Title VII: sources
Jeff Sessions, gay news, Washington Blade

The Justice Department under Jeff Sessions is set to reject LGBT protections under Title VII of the Civil Rights Act of 1964, according to sources. (Image courtesy C-Span)

The U.S. Justice Department under U.S. Attorney General Jeff Sessions is set to file a brief undermining efforts to ensure LGBT people are protected from discrimination under current federal civil rights law, according to two outside sources familiar with the effort.

Although LGBT groups — and a growing number of courts — are taking the view the prohibition on sex discrimination in employment under Title VII of the Civil Rights Act of 1964 also bars discrimination against LGBT people, sources say the Justice Department will file a brief in an employment discrimination case before the U.S. Second Circuit Court of Appeals opposing that view.

James Esseks, director of the ACLU’s LGBT and HIV Project, told the Washington Blade the Trump administration filing such a brief would be going out of its way to undermine LGBT rights.

“This would be a gratuitous and extraordinary attack on LGBT people’s civil rights,” Esseks said. “DOJ would be reaching out to offer its opinion on these issues, since they are not a party to this case. That’s not championing LGBT people, it’s working affirmatively to expose us to discrimination. But fortunately, whether the Civil Rights Act protects LGBT people is ultimately a question for the courts to resolve, and not for the attorney general. We are confident that the courts will come to the right decision here.”

The case is known as Zarda v. Altitude Express and the plaintiff is the estate of deceased New York skydiver Donald Zarda, which alleges he was fired from his job in 2010 for being gay. Although a three-judge panel on the Second Circuit in April determined Title VII doesn’t prohibit anti-gay discrimination, and therefore doesn’t apply to Zarda’s case, the court at the request of Lambda Legal has agreed to reconsider the ruling “en banc,” or before the full court.

Before the deadline of Wednesday at close of business, sources say the Justice Department intends to file a friend-of-the-court brief that would affirm the view of the three-judge panel and argue the prohibition of sex discrimination under Title VII doesn’t prohibit discrimination on the basis of sexual orientation.

Additionally, sources say DOJ is going to take the opportunity to argue Title VII also doesn’t prohibit discrimination based on gender identity — even though transgender discrimination isn’t at issue in the case.

Such a brief would reverse a position under former U.S. Attorney Eric Holder asserting discrimination on the basis of gender identity is prohibited under Title VII. In a 2014 memo, Holder wrote the Justice Department will no longer assert Title VII’s prohibition on gender discrimination “does not encompass gender identity per se (including transgender discrimination).”

Although the Justice Department under the Obama administration never took an official view on whether sexual orientation discrimination is prohibited under Title VII, a brief arguing against the idea LGBT people are protected under Title VII would effectively turn a Justice Department that once argued for protections for LGBT people into an institution that seeks to undermine them.

The brief would be inconsistent with significant case law affirming discrimination based on transgender status is prohibited under Title VII. Four federal appellate courts — the First, Sixth, Ninth and Eleventh circuit courts of appeals — have determined employment discrimination against transgender people is barred under the law.

Although case law that has determined Title VII bars workplace discrimination against lesbian, gay and bisexual people is less developed, some courts are reconsidering decisions made in past decades against protections based on sexual orientation.

The Seventh Circuit determined earlier this year in the case of Hively v. Ivy Community College that sexual orientation discrimination constitutes sex discrimination under Title VII, but the Eleventh Circuit came to the opposite view. Lambda Legal is preparing to submit a petition before the U.S. Supreme Court seeking a nationwide affirmation that anti-gay workplace discrimination is barred under current law.

The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment non-discrimination law, determined transgender people are protected under Title VII in its 2012 ruling in Macy v. Holder and lesbian, gay and bisexual people are protected under the law in its 2015 decision in Baldwin v. Foxx.

Even though the Justice Department brief would be restricted to an interpretation of law related to employment, it could have implications for other federal laws barring sex discrimination in housing and education and seems to be at odds with the position of the Education Department.

Although the Justice Department and the Education Department agreed to revoke Obama-era guidance assuring transgender kids access to the restroom consistent with their gender identity under Title IX of the Education Amendments of 1972, the Education Department issued a memo declaring the administration may take up complaints filed by transgender students as incidents of sex discrimination outside of the bathroom issue.

A Justice Department spokesperson declined to comment for this article.

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

  • Thank a gay Republican today!

    • Remember how all those GLBT Trump supporters tried to dupe us into thinking that we should support the GOP and Trump? How Trump was so supportive and we should give him the benefit of the doubt. How we should ignore the anti-GLBT platform of the GOP? Trump dangled a rainbow flag at one of his conventions and used Peter Thiel to bait the trap. Even invited Jenner to his inauguration. They told us we won Marriage Equality so allegedly we had nothing more to worry about as if what is given can’t be taken away or undermined. We had nothing more to fight for according to them. Leaving Obama’s workplace executive order in tact proved his support.

      Yet it was all smoke and mirrors and like pretty much all the Fake POTUS does a massive flip flop soon followed! We know that this would never be pushed by Sessions without Trump’s approval even if tacit.

      I noted when Obama was in office that all it would take would be a different interpretation of whether these laws protected LGBT or not from a conservative administration to attempt to undermine the EEOC and court interpretations. I knew the community had become complacent and taken way too much for granted and under-estimated the resolve of its enemies. A generation of GLBT having never really known oppression under the Obama administration rudely awakened!

      I notice this POTUS has time to speak before the Boy Scouts of America but can’t be bothered to even declare June as Pride month. He already pulled the rug under you concerning fighting for bathroom rights in the courts and ignores gay men being put in concentration camps in Chechnya! The sad thing is it will only get more uglier going forward. Let’s hope the present freedom fighters have the same gumption and resolve as those that got us as far as we’ve come! Resist and Act Up!

  • Send this racist, backwoods hillbilly back to Alabama!

  • It is actually little old me who is representing Zarda, with the help of Lambda as amici. Thanks

  • “As President, I will do everything in my power to protect the LGBTQ people from the oppression of a hateful foreign ideology. And as a Republican, I am glad to hear you all cheer for what I just said.” – Donald J. Trump, on accepting the nomination of the Republican Party.

    Yep. He will protect us from the oppression of a hateful foreign ideology…and expose us to the oppression of a hateful DOMESTIC ideology!

    You all want the truth? I am more afraid of the people currently in power (Jeff Sessions, Mike Pence, Betsy DeVos, Tom Price, Ben Carson…to name just a few) than I am of any foreign terrorist! I am FAR MORE LIKELY to be hurt by Pence, Price, DeVos, Sessions, and Carson…than I am to be hurt by a foreign terrorist.


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