The Trump Administration dealt a blow to gay, lesbian and bisexual people yesterday when it filed an amicus brief in Zarda vs Altitude Express, involving a gay skydiving instructor who sued when the New York company fired him for being gay in 2010.
At issue is Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex and national origin. The Obama Administration correctly interpreted “sex” to include gender identity and had indicated that Title VII protections also applied to sexual orientation. The Equal Employment Opportunity Commission has consistently held that the prohibitions on “sex” discrimination also apply to sexual orientation and gender identity, and has brought a number of lawsuits against employers for discriminating against LGBTQ people
In sharp contrast, the Department of Justice now led by Attorney General Jeff Sessions argued in its Zarda amicus brief that, “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. 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,” according to the DOJ’s brief. It concluded that “Title VII does not prohibit discrimination because of sexual orientation.” More ominous still, DOJ claimed that it has a “substantial and unique interest” in the Title VII’s interpretation because the federal government is the largest employer in the country.
The DOJ’s suggestion that Title VII be “directed to Congress” is bitterly ironic in that the Equality Act (H.R. 2282), now pending in the House and strongly supported by Equality California, would confer wide-ranging protections for LGBTQ people against discrimination. It has been co-sponsored by 195 Members of Congress (including 38 in the California Congressional delegation) but has been blocked by the GOP controlled Congress.
Equality California intends to work with our colleagues at Lambda Legal, the National Center for Lesbian Rights and the ACLU to marshal a strong response to the Trump Administration’s efforts deny LGBTQ Americans basic civil rights protections.