The Washington Blade, July 25, 2017:
The U.S. Justice Department under U.S. Attorney General Jeff Sessions is set to file a brief undermining efforts to ensure LGBT people are protected from discrimination under current federal civil rights law, according to two outside sources familiar with the effort.Although LGBT groups — and a growing number of courts — are taking the view the prohibition on sex discrimination in employment under Title VII of the Civil Rights Act of 1964 also bars discrimination against LGBT people, sources say the Justice Department will file a brief in an employment discrimination case before the U.S. Second Circuit Court of Appeals opposing that view.
James Esseks, director of the ACLU’s LGBT and HIV Project, told the Washington Blade the Trump administration filing such a brief would be going out of its way to undermine LGBT rights.
“This would be a gratuitous and extraordinary attack on LGBT people’s civil rights,” Esseks said. “DOJ would be reaching out to offer its opinion on these issues, since they are not a party to this case. That’s not championing LGBT people, it’s working affirmatively to expose us to discrimination. But fortunately, whether the Civil Rights Act protects LGBT people is ultimately a question for the courts to resolve, and not for the attorney general. We are confident that the courts will come to the right decision here.
The case is known as Zarda v. Altitude Express and the plaintiff is the estate of deceased New York skydiver Donald Zarda, which alleges he was fired from his job in 2010 for being gay. Although a three-judge panel on the Second Circuit in April determined Title VII doesn’t prohibit anti-gay discrimination, and therefore doesn’t apply to Zarda’s case, the court at the request of Lambda Legal has agreed to reconsider the ruling “en banc,” or before the full court.
Before the deadline of Wednesday at close of business, sources say the Justice Department intends to file a friend-of-the-court brief that would affirm the view of the three-judge panel and argue the prohibition of sex discrimination under Title VII doesn’t prohibit discrimination on the basis of sexual orientation.
Additionally, sources say DOJ is going to take the opportunity to argue Title VII also doesn’t prohibit discrimination based on gender identity — even though transgender discrimination isn’t at issue in the case...