Is Trump Now Anti-Gay?

Terry H. Schwadron

July 30, 2017

Were the President actually still speaking to the Attorney General , perhaps they could engage in a discussion about what has amounted to a nasty rollback of gay rights and whether that is truly what will help heal a divided country going forth.

President Trump’s deluded tweet announcing a ban on transgender men and women in the military, an announcement that was neither law nor effectual coordination with the military itself, grew worse this week with disclosure of a Justice Department legal brief that the landmark Civil Rights Act of 1964 offers no protection from discrimination based on sexual orientation.

It seems after several days of journalistic poking around that the best explanation for Mr. Trump’s surprise policy announcing had resulted from a legislative deal. To preserve a spending bill that included some funds to start his favorite southern border Wall, Mr. Trump apparently agreed to doing something to intervene to make irrelevant a proposed amendment barring funds from being used for transsexual surgery. The fact that it broke campaign promises to fight for LGBTQ causes seemed not to even furrow the presidential brow; the fact that the move is anti-Civil Rights and, from my view, at least, anti-American values.

But on the same day came word of the Department of Justice motion. DOJ lawyers, arguing under Atty. Gen. Jeff Sessions, submitted an amicus brief to the U.S. Court of Appeals for the Second Circuit in which they said the department did not believe the law ― which bans discrimination based on race, color, religion, sex or national origin ― applied to lesbian and gay people. The brief was filed as part of a lawsuit filed by a now-deceased skydiving instructor, Donald Zarda, who said he was fired for his sexual orientation. His lawyers contend the dismissal violated of the act’s Title VII, which prohibits employment discrimination. Zarda has since died. Needless to say, the relevant advocacy groups condemned the brief as “shameful” and “politically driven.”

What makes the coincidence of the two announcements stranger yet, of course, is that President Trump is going out of his way to humiliate Sessions publicly, and threatening to force his resignation — all because Sessions recused himself from all-things-Russia and, by doing so, allowed an investigation to proceed that the President doesn’t want. Sessions is proving equally stubborn, insisting that he is doing not only a good job, but pursuing the Trump agenda in immigration, stronger police backing, and reduction of civil rights and consumer protection cases.

For senators, both Democratic and Republican, the Trump-Sessions showdown has proved a bit of a red line for the President, who is surprised only by the fact that he cannot do whatever he wants to do as president. For me, I hardly think it is the recusal issue that matters, but everything else that Sessions does that bothers me.

This view of the Civil Rights law is a good case in point.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department brief says. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” It adds: “The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.”

OK, I’ll grant that as black letter law, there is a point here about the language of the Civil Rights law which bars discrimination in the workplace based on “race, color, religion, sex or national origin.” But there is also more than 40 years of practical history since the passage of that law, a time, you may have heard, in which same-sex marriage, gay adoption, gay rights in the workplace have been expanded — if not in the courts, then on the street.

Under the Obama administration, there were Equal Employment Opportunity Commission rulings that upheld the application of civil rights laws to sexual orientation and transgender cases, but there has been no specific court decision apparently. The DOJ brief argues that the EEOC lacks the power to decide such an issue.

“In one fell swoop, Trump’s DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act, Title IX, or Title VII,” Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement. “For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’s filing is a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically-driven and legally specious result.”The American Civil Liberties Union called the DOJ position “one more gratuitous and extraordinary attack on LGBT people’s civil rights,” and said it would defend Americans’ rights in the courts.

The New York Times noted that DOJ’s department’s move to insert itself into the New York case was an unusual example of top officials in Washington opining directly in the courts on what is an important but essentially private dispute between a worker and his boss over gay rights issues.

In 2010, Zarda was fired by a Long Island-based company called Altitude Express. Before taking a female client on a tandem dive, Zarda told the woman he was gay to assuage any awkwardness that might arise from the fact that he would be tightly strapped to her during the jump. The woman’s husband complained to the company, which subsequently fired Zarda, who Mr. sued Altitude Express, claiming it had violated Title VII.

Congress ought to be able to agree to add the words sexual orientation to the statute. There is too much at stake not to do so.

Get it done.




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