The Justice Department Says the Civil Rights Act Doesn’t Protect LGBTQ Folks from Discrimination

During arguments in a Manhattan Federal Court Wednesday, the Justice Department argued that laws protecting employees against gender bias don’t actually apply to LGBTQ+ people, calling to question exactly what the Civil Rights Act, written in 1964, would cover in cases of bias against queer folk.

Title VII of the Civil Rights Act states that it’s illegal to discriminate against someone based on their race, color, nationality, religion, and sex or gender identity. The “amicus brief” written by Justice Department lawyers under US Attorney General Jeff Sessions argues that the gender provision of Title VII cannot apply to gay people because gay people can be any gender. Basically, what they’re saying is that civil rights are only being taken away if men and women are treated unequally, leaving queer people open to discrimination based on their sexual orientation.

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the brief reads. “This court should reaffirm its precedent holding that Title VII does not prohibit discrimination because of sexual orientation.”

The arguments are being heard based on a case where a skydiving instructor, Donald Zarda (who died in 2014, but not before setting this lengthy court case into motion), was fired from his job because of his sexual orientation.

Sarah Warbelow, legal director of the Human Rights Campaign, told Bloomberg the DOJ’s filing was “politically-driven and legally specious.”

“Attacks against the LGBTQ community at all levels of government continue to pour in from the Trump-Pence Administration,” Warbelow said in an email. “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.”

Currently, LGBTQ+ workers can be fired for their sexual orientation in 28 states.

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(h/t Refinery29; photo via Spencer Platt / Getty)