July 3, 2019 at 1:27 pm EDT | by Chris Johnson
Former Obama admin officials urge Supreme Court to uphold LGBT protections
From left, Chai Feldblum, Arne Duncan and Mary Beth Maxwell signed a brief urging the Supreme Court to uphold LGBT protections. (Washington Blade photos of Feldblum and Duncan by Michael Key; photo of Maxwell public domain)

A group of 36 former federal government officials who served during the Obama administration is calling on the U.S. Supreme Court to uphold LGBT rights in pending litigation that will determine whether firing a worker for being LGBT is legal.

The 43-page brief points to decisions made during the Obama administration that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex in the workplace, should be read to constitute workplace protections for LGBT people.

“The decisions reached by the EEOC and others — that Title VII’s prohibition of the ‘entire spectrum” of sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity, including transgender status — were the product of long, careful, and conscientious study and independent consideration across multiple agencies,” the brief concludes. “These deliberate determinations have been embraced and amplified by numerous courts, including several en banc Circuits, and are coherent and correct as a matter of law.”

Based on those determinations, the brief asks the Supreme Court to reach the same conclusion in pending litigation that will determine once-and-for-all whether LGBT people are afforded protections under Title VII.

A key component of the brief is past determinations from the U.S. Equal Employment Opportunity Commission concluding LGBT people are protected under Title VII. EEOC is the U.S. agency charged with enforcing employment non-discrimination laws.

“The EEOC did not read sexual orientation and gender identity into the statute; it instead applied the law and refused to continue to apply discredited precedents to read sexual orientation and gender identity out of the statute,” the brief says. “Put another way, the EEOC concluded that Title VII contains no LGBT exception.”

In 2012, the EEOC determined in the case of Macy v. Holder anti-transgender discrimination is a form of sex discrimination, thus illegal under Title VII. Subsequently in 2015, the EEOC concluded in the case of Baldwin v. Foxx workplace discrimination on the basis of sexual-orientation amounts to sex discrimination.

Since the time of those determinations, the EEOC has begun accepting charges from LGBT workers throughout the United States from workers who allege they’ve experienced discrimination on the job because of their sexual orientation or transgender status.

Other departments within the Obama administration, such as the Justice Department and the Education Department, reached the conclusion laws against sex discrimination afford LGBT protections, at least with respect to transgender people. Based on that determination, the Education Department issued guidance requiring schools to allow transgender students to use the restroom consistent with their gender identity. 

(The Obama administration, however, stopped short of conforming to EEOC’s decision in Baldwin and formally acknowledging sexual-orientation is sex discrimination, despite calls to do so from LGBT rights supporters.)

The Trump administration has reached the opposite conclusion, determining Title VII affords no protections for LGBT people. Among other things, the Education Department rescinded the guidance for transgender students and the Justice Department declared it wouldn’t defend transgender employees under Title VII.

Signers of the brief including former Education Secretary Arne Duncan; former EEOC Commissioner Chai Feldblum; former EEOC Commissioner Jenny Yang; Catherine Lhamon, who served as assistant secretary for civil rights in the Department of Education; David Lopez, former general counsel for the EEOC; Mary Beth Maxwell, principal deputy assistant secretary for policy at the Labor Department; Matt Nosanchuk, senior adviser to the assistant attorney general for civli rights at the Justice Department; and Patricia Shiu, director of federal contract compliance programs at the Labor Department.

Absent from brief is Democratic National Committee Chair Tom Perez, who served as labor secretary during the Obama administration, and 2020 presidential candidate Julian Castro, who served as secretary of housing and urban development. Neither Perez nor Castro implemented the EEOC’s Baldwin decision as heads of those departments.

A Castro campaign spokesperson said the candidate wasn’t asked to sign, but would have penned his name if asked. The DNC didn’t respond to a request to comment on why Perez’ name is absent.

Filing the brief was Dentons, which bills itself as the world largest law firm, and, as counsel of record, senior counsel Evan Wolfson, founder of Freedom to Marry, which helped win same-sex marriage at the Supreme Court in 2015.

“You can’t define sexual orientation without reference to sex, you can’t even spell ‘sexual orientation’ without ‘sex’ and, as the 7th Circuit concluded, ‘the common sense reality [is] that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,’” Wolfson said in a statement.

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

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