Attorney General Jeff Sessions used the Department of Justice to file a brief in favor of allowing companies to fire LGBTQ+ employees because of their sexual orientation. The DOJ brief argues that Title VII of the Civil Rights Act does not cover sexual orientation as a category protected from workplace discrimination. The arguments states that protection based on ‘sex’, which is a category in Title VII, does not cover or include sexual orientation.
Session’s DOJ filed the amicus brief in response to a request by Lambda Legal (the oldest and largest legal organization dedicated to protecting LGBTQ+ rights) that an appellate court review the second circuit court decision in Zarda vs. Altitude Express, which declared that the scope of Title VII does not cover sexual orientation. In response to the Lambda Legal request, the DOJ in its brief agreed with the second circuit court’s anti-gay decision and further contends that this argument, “has been settled for decades,” and that, “Any effort to amend Title VII scope should be directed to Congress rather than the courts.”
Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress, in an interview with Think Progress refuted the DOJ argument limiting the scope of Title VII, noting that in Hively vs Ivy Community College last April, the seventh circuit court ruled that sex discrimination includes sex stereotyping which extends to orientation. In the Hively decision, Gruber explained that Title VII would cover stereotypes based on gender or sex as, “if a woman were a man dating a woman, she would not face discrimination; therefore she is facing discrimination because she is a woman (who dates woman).”
The DOJ brief also tried to implicate transgender people in the argument claiming that the Hively decision defined sex as,”common, ordinary,” which the DOJ claimed means, “biologically male or female.” This spurious argument ignores the fact that in 2012 the U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination.
Jeff Sessions has a long history of enforcing racist and homophobic policies. The former Alabama attorney general fought to keep an LGBT group from being allowed to meet at the University of Alabama because they promoted “actions prohibited by the sodomy and sexual misconduct laws.
Perhaps the beleaguered Attorney General is terrified by Trump’s constant personal attacks and wants to show him he can still hate his way back into The Donald’s good graces.