Marking a major loss for President Trump’s Justice Department, the U.S. Court of Appeals for the 2nd district ruled today that the 1964 civil rights law does ban anti-gay discrimination in the workplace, and doesn’t just apply to making sure women are treated equally in the workplace.
Although it is a private employment case, under Attorney General Jeff Sessions the Justice Department inserted itself in the case to set a precedent that Title VII the 1964 law does not protest LGBT employees when it comes to discrimination in the workplace.
A majority of the full court of 13 judges heard the case and made the ruling, which means now the only appeal left would be to the U.S. Supreme Court.
This new appeals court ruling overturned a lower court and countered the precedent set in two previous court cases.
“We now hold that sexual orientation discrimination constitutes a form of discrimination “because of….sex’ in violation of Title VII,” the court said in the majority opinion.
This is a setback for the Trump and Session strategy to curb LGBT rights by using court activism, rather than legislation. It is the opposite of the approach taken under President Obama, who opened the way for more gay rights.
In its decision today, the court said that there would be no anti-gay discrimination “but for” a person’s sexual orientation.
“A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” wrote Judge Robert Katzmann for the majority.
“We, therefore, can conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”
The legal position that Title VII covers LGBT employment rights was adopted last year by the Equal Employment Opportunity Commission, an autonomous federal agency that deals with civil right dispute int he workplace.
Trump’s Justice Department taking the opposite position means two federal agencies are taking different stances, thus points out BuzzFeed, “pitting the federal government against itself.”
Under Sessions, the Justice Department has used every legal trick it can find to roll back gay and transgender gains that occurred under President Obama, including those that protect transgender students as well as transgender workers.
Sessions also filed a brief on behalf of a baker who refused to bake a wedding cake for a gay couple and in other cases.
It is far from certain that the Supreme Court would agree with the 2nd circuit ruling. In a case, last April after the 7th Circuit Court of Appeals ruled for a lesbian in a similar claim using Title VII, even though the 11th Circuit Court had ruled Title VII does not cover gay workers.
The Supreme Court refused to hear the case, which meant it sided with the 11th Circuit verdict that Title VII does not cover a gay worker.
Trump and Sessions have made it clear they will continue to take an active stance to use the Justice Department to roll back, cut off or eliminate rules that provide gays rights in the workplace, in commerce or in the bathroom.
Under President Obama, it seemed that the dark, repressive days when gays were forced to hide in the closet were finally ending, and they would be treated fairly and equally under the law.
Under Trump, a new dark age looms for gay rights, that can only be reversed at the ballot box in the future.