Once again showing his true anti-queer colors, the Trump Administration's Department of Justice just filed a brief in an ongoing case at the Second Circuit Court of Appeals arguing that federal law permits employers to fire, deny promotion to, and generally discriminate against their employers just for being gay. The brief, which contradicts several federal court decisions and the decisions of the Equal Employment Opportunity Commission, argues that Title VII of the Civil Rights Act, which prohibits “discrimination on the basis of sex”, does not cover sexual orientation discrimination.
This was an unusual filing. The Second Circuit never asked the DOJ to weigh in. Rather, Trump, Attorney General Jeff Sessions, and the Republicans that run this Administration felt so strongly about allowing employers to discriminate against gay people that it submitted the brief on their own, just to make the point known. Let that sink in.
The case is a standard sexual orientation discrimination case. The plaintiff, a skydiver (which is awesome!), argues that he was fired by American Altitude because he is gay. Based on more than a decade of federal court precedent, firing someone because he or she is gay is “discrimination on the basis of sex” in two different, but related ways. We've discussed this before.
The first way that sexual orientation discrimination is sex discrimination is pretty direct. Say Alice, a lesbian, is fired because she married her now-wife, Rebecca. Had Alice been a man (Alex) who married Rebecca, Alex would not have been fired. That's an example of discriminating against women on the basis of their sex and gender.
Another way Title VII covers discrimination against gays and lesbians is through its prohibition on sex stereotyping. The Supreme Court even weighed in on this one. An employer cannot fire a woman for not being feminine enough. Nor can he fire a man for not being manly enough. Doing so would be “discrimination on the basis of sex” because if a woman acts the way society expects a man to act, and is fired by her employer, that employer would be treating the sexes differently. A man who acts masculine would not be fired; a masculine woman would be.
The Trump Administration's arguments against this reasoning is flimsy. The brief suggests that firing someone because he or she is gay is not sex discrimination because employees of both sexes can be fired. That's a neat trick, but one easily unraveled. Just because employers would fire men and women for being gay does not mean sex is taken out of the equation. In fact, the sexes are treated differently when you jump from who is being fired to the reason they were fired, which is really what anti-discrimination law is all about.
The brief's second argument is even worse. Taking a page right out of the Antonin Scalia (and Neil Gorsuch) playbook, it notes that masculine women and effeminate men are the only ones who can bring sex stereotyping claims. A man who acts the way heteronormative society expects, however, can be fired for being gay, according to the brief. That strains logic. How is sex not part of the latter firing? That firing ostensibly happened because the man did not act according to his employer's expectations of how men should act (i.e., have sex with women). That is sex stereotyping, period.
The Second Circuit will consider these arguments soon. A court dominated by progressives, it should slap the Administration down. But Trump and Sessions did not really write this brief for the Second Circuit. Rather, it is a signal–to conservatives, to the Federalist Society, to conservative judges in district and appellate courts and at the Supreme Court that a new administration is in town. It's anti-queer, and it's encouraging every other conservative jurist to come out as anti-queer whenever a case presents itself.
Elections matter. Judicial appointments matter. This action by Trump and his Administration threatens to take us back decades. Let's not let him. #resist.
