In A Blow To Trump’s Justice Department, Federal Court Rules Gays Protected By Civil Rights Act

"Sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."

Finally some good news to greet us on a dreary Monday morning: A federal appeals court ruled this morning that the Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, also bars discrimination based on sexual orientation.

While the Obama administration had long held this view, the Justice Department under Attorney General Jeff Sessions has argued against it.

“We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of… sex,’ in violation of Title VII,” the 2nd Circuit Court stated after an en banc hearing of all 13 judges. “Sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

in 2010, professional skydiver Donald Zarda sued his employer, Altitude Express, alleging he was fired because of his sexual orientation. Altitude Express insisted a client had “various complaints” about Zarda, who has since passed away, and maintained he was terminated because he “failed to provide an enjoyable experience for a customer.”

At the time, Zarda’s argument that he was protected by Title VII was still new. But it’s since been reinforced by the Equal Employment Opportunity Commission and several court decisions. Even so, in 2017, The U.S. Second Circuit Court rejected his claim, leading Zarda to appeal to the full 10-judge panel.

The new 10-3 decision overrules the earlier decision and returns the case to be litigated by Zarda’s estate and Altitude Express.

That same year, the 11th Circuit Court of Appeals also ruled against Jameka Evans, a lesbian security guard who claims she was fired from a hospital because she presents as masculine. Judges in that case determined Title VII did not prohibit employers from discriminating on the basis of sexuality.

It’s a narrow definition endorsed by the Trump administration.

“There is a common-sense difference between sex discrimination and sexual orientation discrimination,” a Justice Department attorney told the court in September.

But in Monday’s ruling, the court maintained that anti-gay bias would not exist but for a person’s gender—i.e. gays and lesbians wouldn’t be discriminated against if they were born in, or attracted to, the opposite sex.

“A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” Judge Robert Katzman wrote in the majority opinion. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

But in a 74-page dissent, Judge Gerard Lynch countered that Congress had not intended to outlaw anti-gay discrimination when it approved Title VII’s language in 1974. Title VII “was intended to secure the rights of women to equal protection in employment” and that Congress “did not then prohibit, and alas has not since prohibited, discrimination based on sexual orientation.”

In all likelihood the issue has no been put to rest, and there’s every likelihood a case challenging the intent of Title VII will make it’s way to the Supreme Court in the near future.

Dan Avery is a writer-editor who focuses on culture, breaking news and LGBT rights. His work has appeared in Newsweek, The New York Times, Time Out New York, The Advocate and elsewhere.