Right when we were all starting to almost feel pity for Attorney General Jeff Sessions, his agency just quietly issued a virulently anti-LGBT ruling.
On Wednesday night, the Washington Blade reported on a 23-page amicus brief the Department of Justice quietly filed the same day that ensconces employers’ rights to discriminate against LGBT workers. In the brief, AG Sessions disputes that discrimination based on sexual orientation shouldn’t be classified the same as gender discrimination. Sessions cites Title VII of the Civil Rights Act of 1964, which lays out explicit protections employees have under federal law from employers:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
However, Sessions disputed that sex-based discrimination should be applied to LGBT individuals, writing, “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.”
“Moreover, whatever this Court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination,” Sessions continued. “Other statutes and rules may prohibit such discrimination, but Title VII does not do so as a matter of law, and whether it should do so as a matter of policy remains a question for Congress to decide.”
There is no ironclad judicial precedent as to how Title VII should be interpreted as it pertains to LGBT employees. While the Seventh Circuit ruled in the Hively v. Ivy Community College case that same-sex discrimination is applicable to Title VII’s sex discrimination language, the Eleventh Circuit disagreed, according to the Blade. Nonprofit LGBT advocacy group Lambda Legal is now asking the U.S. Supreme Court to issue a final ruling on whether or not Title VII’s sex discrimination provision should be applied to LGBT workers.
The ruling from Sessions’ DOJ comes on the heels of President Trump announcing in a tweet that transgender members of the military will no longer be allowed to serve their country “in any capacity.” White House spokeswoman Sarah Huckabee Sanders argued that having transgender men and women in the armed forces “erodes military readiness and unit cohesion.” A 2016 study by the RAND Corporation estimated that there were anywhere from 1,320 to 6,630 members of the U.S. military who were transgender, out of roughly 1.3 million members in all four branches of the armed forces.
Matthew P. Robbins is an economics reporter for Grit Post covering wages, budgets, and taxes. He lives in Chicago, Illinois with his husband and two cats.