Following an announcement on Twitter by the President banning transgender individuals from serving in the military, the Trump Administration has launched yet another attack on the LGBT community.
In a court brief filed Wednesday with the U.S. Court of Appeals for the 2nd Circuit in New York, the Trump Justice Department argues that Title VII of the Civil Rights Act of 1964 does not protect individuals from employment discrimination based on sexual orientation.
Title VII offers protection from discrimination based on “race, color, religion, sex and national origin”. The Equal Employment Opportunity Commission, a government agency charged with enforcing Title VII, followed the Obama Administration’s stance that Title VII’s protection against discrimination based on “sex” also provides protection from discrimination based on gender identity and sexual orientation.
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the brief said. “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.”
That interpretation of the law has been under recent debate, and is the main point of contention surrounding a private employment lawsuit currently being heard by the 2nd Circuit Court of Appeals.
The amicus brief filed by the Justice Department seeks to intervene in that case. An amicus, or friend of the court, brief is a way for an outside party to “assist” the court by offering information that may be relevant to the outcome of the case. These types of filings have been used by the DOJ and former administrations in the past, but they’ve been traditionally used to protect rights, not limit them.
Zarda v. Altitude Express, the case in which the Justice Department filed the brief, is a private employment-related discrimination lawsuit. The case alleges that the plaintiff, Donald Zarda, was fired from his job as a skydiving instructor because of his sexual orientation.
The Washington Post gives further background on the details of the case.
His problems began in 2010 when Rosanna Orellana and her boyfriend David Kengle purchased tandem skydives, in which the instructor is tied to the back of the client to deploy the parachute.
Donald Zarda was Orellana’s instructor and informed her that he was gay and had recently experienced a breakup. “Zarda often informed female clients of his sexual orientation — especially when they were accompanied by a husband or boyfriend — to mitigate any awkwardness that might arise from the fact that he was strapped so tightly to the woman,” according documents in the case.
Kengle, the boyfriend, complained to Altitude Express and Zarda was fired, as the court said, on the stated grounds that he “failed to provide an enjoyable experience for the customer.”
The case was originally heard by a district court, which ruled that Title VII does not offer protection based on sexual orientation.
The ruling was appealed to the 2nd Circuit, where a three-person panel of judges ruled that because a previous precedent regarding Title VII’s interpretation had already been made by the 2nd Circuit, the panel did not have the authority to rule in the case.
Because the panel could not rule, the case is now being heard en banc, meaning before the entire Circuit Court, rather than by a panel appointed by the Court.
This case has the power to overturn a previous ruling by the 2nd Circuit which stated that Title VII does not prohibit discrimination based on sexual orientation.
The Trump Administration’s desire to see that precedent upheld was the motivation behind the amicus brief.
The outcome of Zarda v. Altitude Express will likely have far-reaching effects. If the 2nd Court overturns its previous precedent on Title VII interpretation, it will join other Federal Circuit Courts that have ruled that the law prohibits discrimination based on sexual orientation.
If the 2nd Circuit upholds its precedent, the case is likely to be appealed to the Supreme Court, which has failed to provide a definitive and concrete ruling on the matter.
Although, in 1989, the Supreme Court ruled that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” whether or not that ruling extends to protection from discrimination based on “sexual orientation” has remained a point of contention in similar cases.
Zarda v. Altitude Express could not only lead to a more clear ruling by the Supreme Court, but could also have an effect on the interpretation of similar laws like Title IX of the Education Amendments of 1972. Title IX prohibits educational discrimination in many ways that Title VII prohibits employment discrimination.
Like Title VII, Title IX prohibits discrimination based on “sex.” The law has been used similarly to enforce policies like the Obama Administration’s stance on bathroom usage for transgender students.
The outcome of this case is seen by many as very important to the future of LGBT rights in the United States. Both LGBT advocacy groups and religious organizations have filed amicus briefs in the case.
The Trump Administration, which campaigned on a platform of equality for the LGBT community, has once again shown its true colors. Actions do, in fact, speak louder than words.