The Department of Justice argued in a legal brief filed on Wednesday that the landmark Civil Rights Act of 1964 offers no protection from discrimination based on sexual orientation.
In an amicus brief filed at the U.S. Court of Appeals for the Second Circuit, lawyers under U.S. Attorney General Jeff Sessions (head of the Department of Justice) contend that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, does not cover sexual orientation.
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 say the dismissal violated the act’s Title VII, which prohibits employment discrimination.
The Trump administration’s filing is unusual in partially because the Justice Department isn’t a party in the case, and the department doesn’t typically weigh in on private employment lawsuits.
LGBT advocacy groups condemned the filing as “shameful” and “politically driven.”
“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.”
The Justice Department also contends that Title VII only applies if men and women are treated unequally.
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.”
Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement:
“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…. 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.”
James Esseks, director of the ACLU’s LGBT and HIV Project, said in a statement:
“The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination. 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.”