As expected, Donald Trump’s administration has filed a brief with the Supreme Court urging the justices to rule that it’s legal to fire workers because of their sexual orientation.
The administration made the same argument last week regarding gender identity as the court prepares to hear cases October 8 involving employment discrimination against gay and transgender people.
That day the court will hear a consolidated case involving two incidents where workers say they were fired for being gay; one was a skydiving instructor in New York and the other a social worker in Georgia. It will also hear a case regarding a Michigan funeral director fired after her gender transition.
The cases turn on whether Title VII of the Civil Rights Act of 1964, which forbids sex discrimination, also applies to discrimination based on sexual orientation and gender identity. In the New York and Michigan cases, federal appeals courts ruled that it does, but in the Georgia case, the appeals court ruled that it does not.
Solicitor General Noel Francisco, whose position is part of the Department of Justice, today filed a friend-of-the-court brief arguing that it most definitely does not, the Washington Blade reports. “The question here is not whether Title VII should forbid employment discrimination because of sexual orientation, but whether it already does,” the brief says. “The statute’s plain text makes clear that it does not; discrimination because of ‘sex’ forbids treating members of one sex worse than similarly situated members of the other — and discrimination on the basis of sexual orientation, standing alone, does not result in such treatment.”
Lawyers and judges have contended that it’s reasonable to interpret a law banning sex discrimination as also banning sexual orientation discrimination — if a man who is attracted to men is treated differently from a woman attracted to men, it’s discrimination.
Francisco’s latest brief echoes the language of the one he filed last week in the transgender case. It says Title VII obviously doesn’t cover sexual orientation because Congress has tried to amend federal law with the Employment Non-Discrimination Act (which has never passed) and its successor, the Equality Act, which is now pending and explicitly addresses Title VII. He made that same argument regarding gender identity in last week’s brief.
Last week’s was not a friend-of-the-court brief; it was filed because the federal government is a party to the case, with the Equal Employment Opportunity Commission having taken up the case of Michigan funeral director Aimee Stephens. (The Trump administration has now ordered the EEOC, a quasi-independent federal agency, to cease defending the rights of trans people.) Friend-of-the-court briefs are filed by individuals and organizations that are not directly involved in a case but have an interest in its outcome.
“The friend-of-the-court brief — which was completely voluntary — was among several filed this week urging the Supreme Court to rule anti-gay discrimination is permitted under federal law,” the Blade notes. “Other briefs include filings from the U.S. Conference of Catholic Bishops and the Alabama-based Foundation for Moral Law, which has ties to anti-LGBT Senate candidate Roy Moore.”
The Trump Justice Department had made a similar argument for antigay discrimination when the U.S. Court of Appeals for the Second Circuit heard the case involving the skydiver, Donald Zarda. It also argued for anti-trans discrimination in urging the Supreme Court to hear the Stephens case. And Francisco argued for a baker’s right to discriminate against same-sex couples when the high court heard the Masterpiece Cakeshop case, in which the antigay baker won a qualified victory.
Not all Republicans endorse the administration’s position, however. A group of prominent Republicans, although not including any current officeholders, filed a friend-of-the-court brief in the upcoming cases to argue that Title VII indeed covers discrimination based on sexual orientation and gender identity. Physicians, clergy members, major businesses, and more have filed similar briefs.
But the administration’s stance belies Trump’s recent assertion that he’s “done very well” by LGBTQ people. It’s part of a pattern of endorsing discrimination, with the transgender military ban, revocation of trans-inclusive guidelines for public schools, and support for health care providers’ and federal contractors’ right to discriminate against anyone who offends their religious beliefs.
“This is the Trump Administration’s 124th attack on LGBTQ people since taking office and they join Roy Moore in opposition to workplace protections for LGBTQ people,” said a statement released by GLAAD.
A ruling in the discrimination cases is expected by next June.