The Department of Justice (DOJ) is arguing that sexual discrimination protections in the workplace do not extend to sexual orientation.
The department filed a 36-page amicus brief late Wednesday in the case Donald Zarda brought against his former employer alleging that he was fired from his job as a skydiving instructor because of his sexual orientation.
The DOJ said the 2nd Circuit Court of Appeals based in New York should reaffirm precedent, consistent with the longstanding position of the department, that the law “does not reach discrimination based on sexual orientation.”
“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 department argued.
“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.”
In a statement to The Hill, a DOJ spokeswoman said the brief is consistent with the agency’s longstanding position and the holdings of ten different courts of appeals.
“The brief also reaffirms the Department’s fundamental belief that the courts cannot expand the law beyond what Congress has provided,” the spokesperson said.
“This Department remains committed to protecting the civil and constitutional rights of all individuals and will continue to enforce the numerous laws Congress has enacted that prohibit discrimination on the basis of sexual orientation.”
LGBT rights groups, however, slammed the administration for its brief, which came just hours after President Trump announced plans to ban all transgender people from serving in the U.S. military.
The Leadership Conference on Civil and Human Rights called the brief the second attack of the day on LGBT rights from the Trump administration.
“The Trump administration’s court filing contravenes recent court decisions and guidance issued by the Equal Employment Opportunity Commission that recognizes such protection,” Vanita Gupta, the group’s president and CEO, said in a statement.
“The Leadership Conference on Civil and Human Rights proudly stands with LGBT Americans and their allies who seek relief from discrimination in our judicial system.”
James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said July 26 will be remembered in history as Anti-LGBT Day.
“The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination,” he said.
“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. We are confident that the courts will side with equality and the people.”
Zarda died in skydiving accident before the case went to trial. The executors of his estate have replaced him as the plaintiff in this case and are now appealing the District Court’s refusal to hold that discrimination based on sexual orientation is sex discrimination.