The Department of Justice argued in a legal brief on Wednesday that the landmark Civil Rights Act of 1964 offers no protection from discrimination based on sexual orientation, a position advocacy groups condemned as “shameful” and “politically driven.”
DOJ lawyers, arguing under Attorney General Jeff Sessions, submitted an amicus brief to the U.S. Court of Appeals for the Second Circuit in which they said the department did not believe the law ― which bans discrimination based on race, color, religion, sex or national origin ― applied to lesbian and gay people. The brief was filed as part of a lawsuit filed by a now-deceased skydiving instructor, Donald Zarda, who said he was fired for his sexual orientation. His lawyers contend the dismissal violated of the act’s Title VII, which prohibits employment discrimination.
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department brief says. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” It adds: “The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.”
Including sexual orientation in Title VII has been hazy, even under President Barack Obama, multiple outlets noted. In 2012, the Equal Employment Opportunity Commission found transgender people were covered by the provision, but there has been no clear ruling on whether gay people are afforded the same protections. (The EEOC, beginning in 2015, has said Title VII forbids discrimination based on sexual orientation, but court rulings have complicated the issue.)
The Justice Department said the EEOC doesn’t have the power to decide the issue.
“The EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade,” the DOJ brief reads.
LGBTQ advocacy groups swiftly condemned the Justice Department, hours after President Donald Trump ordered that transgender people would no longer be allowed to serve in the military.
“In one fell swoop, Trump’s DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act, Title IX, or Title VII,” Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement. “For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’s filing is a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically-driven and legally specious result.”
The American Civil Liberties Union called the DOJ position “one more gratuitous and extraordinary attack on LGBT people’s civil rights,” and said it would defend Americans’ rights in the courts.
“The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination,” James Esseks, director of the ACLU’s LGBT and HIV Project, said in a statement. “Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives.”