The affinity group for LGBTQ employees at the Justice Department has a warning for U.S. Attorney General William Barr: The Trump administration’s litigation position against protections for LGBTQ workers under federal civil rights law has left employees with “concern, dismay and even distress about the cases.”
In a letter dated Nov. 22 and made public Monday, the leaders of DOJ Pride said they undertook a survey of LGBTQ lawyers and law enforcement officials within the Justice Department and found “every response but one” was negative about the U.S. government arguing against LGBTQ protections.
“We recognize that the department was arguing in favor of a particular interpretation of a federal statute, and that it was not advocating that LGBTQ individuals are undeserving or unworthy of protections against discrimination,” the letter says. “But many of our members did not perceive the department to have made such a distinction. Some reached out to us in alarm, afraid their jobs could be in jeopardy.”
The signers of the letter include DOJ Pride President Jason Lee, a staff attorney for the Justice Department, as well as each of the board members of the organization.
“Various respondents told us they believe that the department does not support its LGBTQ workforce, that the department think LGBTQ people do not need or deserve anti-discrimination protections, that the department will be less able to recruit and retain talented employees, that department employees will be less comfortable coming out at work and the department’s litigation positions set back the department’s mission of promoting justices, fairness and equality,” the letter says.
In October, U.S. Solicitor General Noel Francisco argued before the U.S. Supreme Court in the cases Zarda v. Altitude Express and Bostock v. Clayton Country against the idea anti-gay discrimination is a form of sex discrimination, therefore prohibited under Title VII of the Civil Rights of 1964, and — defying massive case law — argued against the idea anti-trans discrimination is a form of sex discrimination in the case of Harris Funeral Homes v. EEOC.
It remains to be seen what the Supreme Court will rule. U.S. Associate Justice Neil Gorsuch indicated he’s at least considering the idea Title VII is LGBTQ-inclusive, making LGBTQ legal advocates cautious optimistic about the litigation.
DOJ Pride calls on Barr to reassure employees, no matter the outcome of the cases, the Justice Department’s Equal Employment Opportunity policy will prohibit anti-LGBT discrimination. Also, the LGBT affinity group calls on Barr to reiterate LGBTQ employees and job applicants are welcome.
Further, DOJ Pride calls on Barr to “call for a legislative fix in the event that the Supreme Court adopts the department’s interpretation of Title VII.”
That would be a tall order to fill for a Cabinet member within the Trump administration. President Trump has come out against the Equality Act, which would accomplish that goal.
DOJ Pride also calls for other changes unrelated to the Title VII, such as returning its annual Pride celebration to the Great Hall and adding LGBTQ employees to the department’s leadership positions.
The missive may not fall on deaf ears. As the letter points out, Barr issued EEO policy assuring non-discrimination for LGBTQ employees in February, met with DOJ Pride leaders in June in recognition of Pride Month and subsequently issued a Pride Month statement affirming the value of LGBTQ employees.
At the same time, Barr has stood up for religious freedom at the expense of LGBTQ rights, lamenting the lack of religious exemptions to the LGBTQ curricula several states, including California and Illinois, have adopted within their school system.
The Washington Blade has placed a request in with the Justice Department seeking comment on the letter.