DOJ Says LGBT People Not Protected from Employment Discrimination Under Title VII

In what ACLU’s LGBT and HIV Project director James Esseks called a “gratuitous and extraordinary attack on LGBT people’s civil rights,” the United States Department of Justice is set to file a brief arguing that Title VII of the Civil Rights Act of 1964 does not protect LGBT people from employment discrimination.

The friend-of-the-court brief will be considered when the U.S. Second Circuit Court of Appeals hears the case of Zarda v. Altitude Express, in which the plaintiff alleges that he was fired from his job in 2010 because he is gay.  A three-judge panel for the Second Circuit ruled in April that sexual orientation is not protected under Title VII, but the court has agreed to hear the case again before all of the circuit’s judges.

Title VII prohibits workplace discrimination on the basis of sex but remains vague when applied to the rights of LGBT people. However, a growing number of courts and the Equal Employment Opportunity Commission (EEOC) have determined that Title VII can protect LGBT individuals against discrimination due to the notion that firing an employee as a result of their nontraditional physical appearance or sexual preference amounts to prejudice.

The revelation from the Justice Department came the same week that President Trump announced via Twitter that he plans to reinstate a ban on transgender individuals serving “in any capacity” in the U.S. military, implying that the 1,320 to 6,630 transgender troops currently serving could be discharged, or essentially fired, because of their gender identity.

The Joint Chiefs of Staff were apparently unaware that the President was planning to re-institute the ban, and released a statement informing service members that there would be no changes to policy until the President has issued a formal directive, not just a Tweet. General Joseph Dunford added, “In the meantime, we will continue to treat all of our personnel with respect.”

Attorney General Jeff Sessions has notoriously opposed protections for LGBT individuals throughout his career. During his confirmation hearing, it became a serious point of contention that as a Senator, Sessions had refused to reauthorize the Violence Against Women Act, in part because it would have extended protections to domestic violence victims regardless of sexual orientation or gender identity.

In February, Sessions urged President Trump and Education Secretary Betsy DeVos to join him in rescinding Obama era protections that allowed transgender students access to whichever restroom corresponded with their gender identity as a condition of the education equity guaranteed under Title IX of the Civil Rights Act of 1964. This decision resulted in the Supreme Court announcing that they would no longer hear the case of transgender student Gavin Grimm, a 17-year-old transgender student who filed a lawsuit against the Gloucester School Board after he was barred from using the boys’ restroom at his Virginia high school. The Court said the administration’s rescinding of protections forced them to send the case back down to the appeal’s court for further consideration.


Media Reources: EEOC 7/8/16; Washington Blade 7/25/17; Feminist Majority Foundation 7/26/17, 3/6/17, 2/23/17; CNN 7/27/17

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