Despite their recent rift, Donald Trump and Attorney General Jeff Sessions are in sync on one thing: it's a perfect time to declare open season on LGBTQ Americans.
After Trump declared a ban on transgender military service Wednesday morning, Sessions' DOJ followed up that evening by filing a 23-page brief in a Second Circuit appellate case, Zarda v. Altitude Express Inc., arguing that discrimination based on sexual orientation is not covered by the prohibition on "sex" discrimination under Title VII of the Civil Rights Act of 1964. The Washington Blade's Chris Johnson writes of the brief:
“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,” the brief says. “Moreover, whatever this Court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination. Other statutes and rules may prohibit such discrimination, but Title VII does not do so as a matter of law, and whether it should do so as a matter of policy remains a question for Congress to decide.”
The brief is signed by Chad Readler, acting assistant attorney general for the Civil Division; Tom Wheeler, acting assistant attorney general for civil rights; Deputy Assistant Attorney General Hashim Mooppan; and Justice Department attorneys Charles Scarborough and Stephanie Marcus.
Interestingly, the brief skipped over the topic of discrimination based on gender identity, rather than arguing that it too is not protected under the rubric of "sex" discrimination. Some observers had expected the Justice Department brief would also address that legal argument.
The brief is an articulation of the administration’s view and it runs in conflict with a growing body of rulings from both federal courts and the Equal Employment Opportunity Commission (EEOC) that anti-gay discrimination is prohibited under Title VII.
The government was not a party to the case and typically wouldn’t have filed an amicus brief but apparently went out of its way to weigh in.