By Mary Emily O’Hara
On Friday, August 23, the Trump administration filed a brief with the Supreme Court arguing that sexual orientation should not be considered a protected class and that employers should be allowed to fire American workers for being gay or bisexual. The previous Friday, the administration filed a similar brief arguing that transgender workers should not be protected from discrimination, either.
The Trump administration, represented by Solicitor General Noel Francisco, is gearing up for a serious battle over LGBTQ+ equality set to take place this October at the nation’s highest court. In April, the Supreme Court announced it would hear three major cases that examine whether it should be legal or illegal to fire workers because they are LGBTQ+. Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, involve gay men who were fired from their respective jobs. The third case, R.G. & G.R. Harris Funeral Homes v. EEOC, involves a transgender woman named Aimee Stephens who was fired from her longtime job after informing her employer that she was transitioning.
All of the workers argue that they should be protected under Title VII, the section of the federal Civil Rights Act that bans discrimination on the basis of sex, since they each were fired for not conforming to another person’s opinion of how they should look or act. Basically, that means if your boss fires you because you’re a man in a relationship with another man, but wouldn’t fire you if you were dating a woman, it’s a form of sex discrimination. But the Trump administration argues that the law was meant only to ensure that women and men are treated equally to each other, and that Congress never meant for it to protect people from sex stereotyping.
“The Trump administration’s position defies logic and common sense,” Ria Tabacco Mar, a senior staff attorney for the ACLU, said in an email to MTV News. “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.”
According to previous courts and the Equal Employment Opportunity Commission (EEOC), the Trump administration has it all wrong, as Lambda Legal senior counsel Gregory Nevins pointed out to MTV News. Trump’s Justice Department argued on Friday that Congress never meant for ‘sex’ to include sexual orientation when it passed the law in 1964, saying in the Supreme Court brief that “the ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation.” This is a frequent refrain from the Trump administration, which has repeatedly asserted that the legal definition of sex should be limited to biological sex in an attempt to undo Obama-era rules protecting transgender people from gender discrimination. The New York Times first reported on the administration’s attempts to rewrite the definition in October 2018 when it obtained a memo by the Department of Health and Human Services that attempted to deny the identities and lived experiences of trans and nonbinary people.
But Nevins, who also runs Lambda Legal’s EEOC’s Employment Fairness Project, said multiple courts have since decided that sexual orientation discrimination is a kind of sex discrimination.
“The bipartisan EEOC laid out its positions that Title VII covers discrimination against transgender workers in 2012, and heterosexual, bisexual, lesbian, and gay workers in 2015,” Nevins told MTV News on Friday. “Those decisions have been found convincing by countless courts since their issuance.”
Nevins said Trump’s Justice Department first made its stance clear when it comes to how civil rights law should be interpreted in 2017, when then-Attorney General Jeff Sessions told a lower court in the Zarda case that Title VII shouldn’t protect “homosexuals.” But no court has agreed with that interpretation — yet.
Trump has stacked the Supreme Court with two conservative justices since taking office, and there is a chance that Justices Brett Kavanaugh and Neil Gorsuch will tilt the court’s decision by the time it’s expected to rule on the LGBTQ+ workplace discrimination cases next June. But before that happens, the court’s nine justices will have to read through thousands of pages of arguments. Members of Congress, the nation’s major psychological associations, the largest American labor unions, and, of course, most LGBTQ+ advocacy and civil rights groups have all submitted briefs supporting LGBTQ+ workers. Briefs were also filed by anti-LGBTQ+ groups like the National Organization for Marriage, as well as by conservative Christians groups like the Billy Graham Evangelistic Association — which claims in its brief that protecting LGBTQ+ workers from being fired would leave women subject to assault in restrooms, a seemingly unrelated issue and a claim frequently brought by anti-trans groups that remains unfounded by any data or evidence. Still, the dozens and dozens of briefs filed on both sides of the issue show just how far-reaching the court’s final decision could be.
“Today’s filing is unmoored from basic legal principles,” Mar said. “It is simply reverse engineered to reach the result the Trump administration wants: an America where it is perfectly lawful to fire workers because they are lesbian, gay, or bisexual, or transgender.”
In order to reach that goal, though, the Trump administration won’t just have to go up against a Democrat-led Congress; it also has to battle the federal EEOC, which officially decided in 2015 that gay and bisexual workers are protected from discrimination — and has filed discrimination complaints on their behalf multiple times.
“We conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,” the EEOC said in its landmark 2015 decision. The agency had already ruled in 2012 that transgender workers are protected by the ban on sex discrimination, and despite the Trump administration’s flailing attempts to roll back every trans civil rights protections in place, the EEOC is unlikely to reverse either of its positions that support LGBTQ+ workers.