President Donald Trump’s attack on LGBTQ rights seems to be a full-time job.
As part of its ongoing efforts to eliminate federal recognition and civil rights protections for LGBTQ Americans, the Trump administration has lobbied the U.S. Supreme Court to legalize discrimination against workers based on their sexual orientation, Buzzfeed News reports.
Filed Friday by the Justice Department, an amicus brief urges the high court’s justices to rule that federal law allows private companies to fire employees simply for being gay.
“This is the Trump Administration’s 124th attack on LGBTQ people since taking office,” a GLAAD spokesperson tweeted, “and they join Roy Moore in opposition to workplace protections for LGBTQ people.”
The 34-page brief, signed by U.S. Solicitor General Noel Francisco, addresses upcoming Supreme Court cases involving employment discrimination against gay and transgender people. These cases will determine whether Title VII of the Civil Rights Act of 1964, which outlaws workplace discrimination on the basis of “sex,” also applies to discrimination based on sexual orientation and gender identity.
The Trump administration argues that courts should stop interpreting Title VII as protecting LGBTQ workers against bias because that was not the original intention of the legislation. The DOJ brief also notes that Congress has tried and failed to add LGBTQ protections to federal civil rights law with the Employment Non-Discrimination Act and the Equality Act, which would amend the Civil Rights Act to explicitly ban anti-LGBTQ discrimination.
While some lower court rulings have found that targeting employees for their sexual orientation is an illegal example of sex discrimination and sex stereotyping under Title VII, federal lawyers are now asking the Supreme Court to limit the Civil Rights Act’s protections to specifically exclude LGBTQ people.
A ruling that Title VII’s ban on sex-based discrimination only prohibits unequal treatment between “biological sexes” would likely trickle down to affect similar state and federal laws that reach beyond employment, including public schools.
“The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation,” the brief reads. “An employer thus discriminates ‘because of… sex’ under Title VII if it treats members of one sex worse than similarly situated members of the other sex. Discrimination on the basis of sexual orientation, standing alone, does not satisfy that standard.”
“The correct comparison is between a female employee in a same-sex relationship and a male employee in a same-sex relationship; they would be similarly situated—and they would be treated the same,” the filing continues. “An employer who discriminates against employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships.”
Friday’s brief comes a week after the Justice Department filed a related brief arguing that companies can legally fire workers simply for being transgender under Title VII.
The Supreme Court will hear oral arguments in three Title VII discrimination cases—Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC—on October 8 and deliver a ruling by June 2020.