Last week, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) — two organizations representing the federal government — both showed up at the 2nd U.S. Circuit Court of Appeals to argue against each other in the case of Zarda v. Altitude Express, a lawsuit in which a former skydiving instructor accused his employer of anti-gay workplace discrimination.
The EEOC says that Title VII of the Civil Rights Act of 1964 forbids anti-gay workplace discrimination as a form a sex discrimination because it punishes people for being a certain gender. Some lawyers, several courts and 125 members of Congress agree with this interpretation.
However, the amicus brief that the DOJ filed in this case was odd and pretty much made no sense. In short, they argued that anti-gay discrimination isn’t a form of sex discrimination because anti-gay discrimination can be used against men and women equally. Also, they said, since anti-gay discrimination may be based on religious beliefs rather than a belief that one gender is superior to another and thus, it has nothing to do with sex.
But these arguments make no sense because if an employer discriminates against a lesbian woman, it’s because she’s a woman who dates women. If she were a man who dated woman, there’d be no basis for anti-gay discrimination against her because such discrimination is entirely dependent on her sex. Thus, anti-gay discrimination isn’t about belief in notions of “superiority” or religion — it’s a form of sex discrimination, pure and simple.
Anyway, the fact that two agencies under the federal government were in a federal court arguing against each other is weird because the federal government is “expected to speak with one voice on legal affairs.”
Chief Judge Katzmann asked why the lawyer representing the DOJ didn’t defer to the EEOC’s interpretation of the law, and the DOJ lawyer answered that its department is the largest employer in the federal government, implying that it has a special interest in continuing to fire people for being gay.
When judges asked whether the DOJ signs off on legal positions taken by the EEOC, the DOJ lawyer refused to answer, stating, “That’s not appropriate for me to disclose.” The procedure by which the federal government comes to decisions about its legal stance on this issue isn’t supposed to be a secret. In fact, agencies need to be transparent about their legal decision making in order for courts to rule on their justness, but Trump’s DOJ is treating it like a secret, which reportedly annoyed the judges.
We won’t have a ruling on this case for a little while, but if the DOJ represents the best the Trump administration has to offer on justifying anti-LGBTQ workplace discrimination, then the courts may hand down a pro-LGBTQ victory much sooner than we thought.
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