(Photo Credits: Shealah Craighead [Public domain])

The Trump administration filed an amicus brief with the Supreme Court saying that employment discrimination, including firing of workers based on sexual orientation, is legal under the federal civil rights law. A similar brief was filed on August 16, 2019 for gender identity saying that transgender workers are not protected by law. 

The move was made several weeks before the Supreme Court hear oral arguments on three job discrimination cases—two on sexual orientation and one on gender identity—as to whether Title VII of the Civil Rights Act of 1964 include sexual orientation as a protected class and whether it applies to cases of LGBT discrimination or not.  

According to CNBC, the cases “could for the first time resolve at a national level whether lesbian, gay, bisexual and transgender workers can be fired based on their identity.”

The aforementioned cases are the Altitude Express Inc. v. Zarda consolidated with Bostock v. Clayton County, Georgia. In the former, Zarda, a skydiving instructor, claimed he was “fired because of his sexual orientation and also because he did not conform to male gender stereotypes.” In the latter, Bostock was a child welfare services coordinator since 2003 who had consistently “received positive performance evaluations and numerous accolades” at work. Bostock was fired in 2013 because of “conduct unbecoming of its employees” shortly after he began participating in a gay recreational softball league. Lastly, in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, Aimee Stephens had been the funeral director at R.G. and G.R. Harris Funeral Homes for almost six years but was promptly fired after she told her employer that she is a transgender woman.

There is a long-standing argument regarding Title VII of the Civil Rights Act of 1964, a civil rights and labor law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. But the brief filed by the Justice Department says that the law prohibiting employment discrimination based on sex does not extend to discrimination based on sexual orientation. According to BuzzFeed, here are some of the reasons mentioned and we quote:

  • Title VII’s prohibition on discrimination because of sex does not bar discrimination because of sexual orientation.
  • The ordinary meaning of ‘sex’ is biologically male or female; it does not also refer to sexual orientation.
  • An employer thus discriminates ‘because of … sex’ under Title VII if it treats members of one sex worse than similarly situated members of the other sex. Discrimination on the basis of sexual orientation, standing alone, does not satisfy that standard.

A senior staff attorney for the ACLU named Ria Tabacco Mar said in an interview with the Washington Blade that the brief “defies logic and common sense” and that it is “unmoored from basic legal principles.” Mar said, “They admit it is unlawful to fire gay men or lesbians, but claim it is perfectly fine to fire gay men and lesbians. And they concede that employers may not penalize workers based on ‘gender norms,’ yet assert that discriminating based on moral beliefs about sexual or marital relationships has ‘nothing to do with’ gender norms.”

The outcome of the hearing on October 8 will ultimately “help decide the future of gay and transgender rights in America,” Vox said. 

You can read the brief for sexual orientation in full here and for gender identity here.

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