The Trump administration Friday filed a brief with the Supreme Court arguing that gay workers are not protected by federal civil rights law. The filing came exactly one week after the administration argued the same for transgender workers.
The brief was submitted in combined cases concerning Gerald Bostock, a gay man fired from his job as a child welfare services worker by Clayton County, Georgia, and the late Donald Zarda, a gay man fired from his job as a skydiving instructor by New York company Altitude Express. The Bostock and Zarda cases are two of three cases concerning LGBTQ workers’ rights that the Supreme Court is expected to hear this fall.
This latest brief, submitted by Solicitor General Noel J. Francisco and other Department of Justice attorneys, argues that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, “does not bar discrimination because of sexual orientation.”
“The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation,” the brief states. “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.”
The issue of whether “sex” discrimination in Title VII includes discrimination based on sexual orientation and gender identity has caused a split in lower courts over the past several years, with some backing gay workers and others the employers who have fired them.
In addition to the Zarda and Bostock cases, the Supreme Court is set to hear R.G. G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, et al. That case concerns Aimee Stephens, a transgender woman who was fired from a Detroit funeral home after she informed her employer that she was beginning her gender transition. The Trump administration filed an amicus brief in the Stephens case Aug. 16, siding with the employer.
Prior to its amicus briefs in the Bostock, Zarda and Stephens cases, the Trump administration had already made its position clear on the scope of sex discrimination in Title VII. In July 2017, the Department of Justice submitted an amicus brief with the 2nd U.S. Circuit Court of Appeals in the Zarda case opposing the extension of Title VII discrimination protections on the basis of sexual orientation. And in October 2018 — prior to the Supreme Court decision to hear the Stephens case — the Justice Department filed a brief with the high court siding with the funeral home. In the Stephens case, the federal government is pitted against itself, since the Equal Employment Opportunity Commission is a defendant in the case.
The Supreme Court will hear the cases next term, which begins in October.