Officials from the Department of Justice appeared in court yesterday to argue that discrimination against gay employees is legal.
Under President Obama, the Justice Department regularly intervened in court battles to argue for civil rights protections for LGBT people.
But under Trump’s Attorney General Jeff Sessions, the Justice Department has abruptly shifted its stance.
The DOJ has made an uninvited intervention in a workplace discrimination case, with officials this week appearing before the U.S. Court of Appeals for the 2nd Circuit.
The Manhattan court is currently hearing the case of Donald Zarda, a former skydiving instructor who alleges that his old company, Altitude Express Inc, fired him because of his sexuality.
But in its surprise intervention, federal government officials sided with the employer – arguing that it is entirely legal to discriminate against gay employees on a federal level.
Zarda’s lawyers had cited civil rights protections from the 1960s in their case.
But the Department of Justice now insists that Title VII of the Civil Rights Act of 1964, which outlaws discrimination in employment based on sex, does not provide any protection for gay people.
As Republicans in Congress have long blocked efforts to pass a specific LGBT anti-discrimination measure, a ruling against Title VII would leave little federal protection for LGBT people facing discrimination at work.
Deputy Assistant Attorney General Hashim M. Mooppan appeared before the court this week to argue against gay rights protections.
Mooppan insisted: “Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct.
“There is a commonsense, intuitive difference between sex and sexual orientation.”
The DOJ had insisted: “Discrimination based on sexual orientation does not fall within Title VII’s prohibition on sex discrimination because it does not involve “disparate treatment of men and women”.
“Rather than causing similarly situated ‘members of one sex [to be] exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed’, differential treatment of gay and straight employees for men and women alike.”
The DOJ also argued somewhat circularly that it was clear that existing civil rights law doesn’t protect gay people, because Congress remains opposed to “proposed legislation that would prohibit discrimination in employment based on sexual orientation”.
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It said: “When adopting Title VII’s ban on sex discrimination in 1964, and especially when amending it in 1991, Congress was well aware of the distinct practice of sexual orientation discrimination and chose not to ban it also.
“To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so.”
Sarah Warbelow, Human Rights Campaign Legal Director, told PinkNews in a statement: “Attacks against the LGBTQ community at all levels of government continue to pour in from the Trump-Pence Administration.
“In one fell swoop, Trump’s DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act, Title IX, or Title VII.
“For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law.
“The [DOJ’s actions are] a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically-driven and legally specious result.”
Donald Trump’s Defense Secretary James ‘Mad Dog’ Mattis is pushing ahead with the administration’s plans to ban transgender people from the military.
In the face of multiple civil rights lawsuits, Trump officials have already blocked recruitment of any military personnel who identify as transgender, while they are working on plans to ‘purge’ existing soldiers from next year.