President Trump’s outrageous claim Wednesday that transgender service members were a burden on the nation was crude and simplistic, and it seemed to catch the Pentagon by surprise.
By contrast, the friend-of-the-court brief filed by Justice Department lawyers in a gay man’s employment discrimination lawsuit was detailed and dispassionate. Yet it, too, belies Trump’s assurances in last year’s campaign that he cares about “our LGBTQ citizens.”
The U.S. government isn’t a party to the lawsuit brought by the late Donald Zarda, a skydiving instructor who said he was fired after he revealed that he was gay. He sued his former employer under Title VII of the 1964 Civil Rights Act, which prohibits discrimination because of “sex” — which the plaintiff argued covers discrimination on the basis of sexual orientation. A lower court judge and an appeals panel disagreed, and now the case is before the full 2nd Circuit Court of Appeals.
The U.S. Equal Employment Opportunity Commission shares Zarda’s view of the law. But the Trump Justice Department took the contrary position in its brief. “Any efforts to amend Title VII’s scope,” the brief said, “should be directed to Congress rather than the courts."
It’s true that in 1964, few if any members of Congress were thinking about discrimination against gay men and lesbians. It’s also true that until recently, courts did not interpret “sex discrimination” to include discrimination on the basis of sexual orientation.
But, as the Supreme Court has recognized, the meaning of sex discrimination can evolve. For example, in 1998 the high court ruled in favor of a male oil-rig worker who alleged that he had been the target of sexually oriented touching and rape threats from male co-workers — even though the Congress that enacted Title VII wasn’t primarily concerned with “male-on-male sexual harassment.”
Citing that decision (and others), the U.S. 7th Circuit Court of Appeals in Chicago ruled earlier this year that discrimination on the basis of “sex” did include discrimination on the basis of sexual orientation. The appeals court explained that, over the years, “Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” For example, the law has been interpreted to forbid hiring decisions based on gender stereotypes. Extending that principle, the 7th Circuit held that refusing to promote the plaintiff in that case because she was a lesbian was punishing her for the “ultimate case of failure to conform to the female stereotype.”
Ultimately, the Supreme Court must decide whether the 7th Circuit’s interpretation is correct; we found it persuasive. But the Trump administration’s rush to insist that the law doesn’t protect gays and lesbians — in a case in which the federal government is not even involved — is deeply disappointing.
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