Donald Trump took his hardest line yet to legalize anti-gay discrimination today when his administration asked the Supreme Court to declare that federal law allows private companies to fire workers based only on their sexual orientation.
An amicus brief filed by the Justice Department weighed in on two cases involving gay workers and what is meant by Title VII of the Civil Rights Act of 1964, which bans discrimination “because of sex.”
The administration argued courts nationwide should stop reading the civil rights law to protect gay, lesbian, and bisexual workers from bias because it was not originally intended to do so.
That view conflicts with some lower court rulings that found targeting someone for their sexual orientation is an illegal form of both sex discrimination and sex stereotyping under Title VII.
Those courts have found, to illustrate the point, that a gay man wouldn’t be targeted if he were instead a woman dating a man; thus he faced discrimination because of his sex.
But the administration said in its brief today that Title VII’s ban on sex discrimination only prohibits unequal treatment between “biological sexes,” as it argued last week in a related brief against transgender rights, in which the Justice Department said companies should be able to fire people because they are transgender as well.
Congress did not explicitly say that the meaning of sex in Title VII encompasses LGBTQ people, so, the administration argues, the law cannot apply to sexual orientation.
Federal lawyers are asking the Supreme Court, for the first time, to explicitly limit the Civil Right Act’s protections to exclude LGBTQ people.
“Title VII’s prohibition on discrimination because of sex does not bar discrimination because of sexual orientation,” said the Justice Department’s brief.
A Supreme Court ruling in the government’s favor could trigger cascading ramifications for LGBTQ rights.
Limiting the scope of Title VII would assert that a raft of state and federal laws banning sex-based discrimination have no application for sexual orientation or gender identity, a ruling that would likely reach far beyond employment to other settings where sex discrimination is banned, including public schools.
No federal law explicitly bans anti-LGBTQ discrimination in workplaces.
Several LGBTQ individuals have successfully invoked Title VII in lower courts, while other courts have reached the opposite conclusion.
It appeared inevitable that the high court would eventually hear a case on the scope of Title VII for LGBTQ people to resolve those conflicts.
The Justice Department also filed a separate motion today asking for Solicitor General Noel Francisco to get time during oral arguments when the Supreme Court hears the case next month, saying, “The United States has a substantial interest” in the case.
Today’s filing comes on the heels of the administration’s plans last week to let federal contractors discriminate against workers by claiming a religious reason and the administration telling the Supreme Court that it’s also legal to fire transgender workers under Title VII.