The United States Department of Justice (DOJ) under Jeff Sessions has launched an attack on gay rights under the Civil Rights of Act of 1964 in a friend of the court brief filed with the United States Court of Appeals for the Second Circuit, report the New York Times and the Huffington Post. The filing is remarkable for coinciding with President Donald Trumps' tweets purporting to ban transgender people from serving in the military in a bid to shore up support to fund his planned border wall between the United States and Mexico.
The DOJ filed the amicus brief in the case of Zarda v. Altitude Express urging the court to rule that the prohibition of sex discrimination in Title VII of the Civil Rights Act of 1964 does not protect people on the basis of their sexual orientation. Mr. Zarda, a skydiving instructor, had revealed to a client that he was gay, and his employer subsequently fired him when she complained.
The DOJ's gratuitous intervention runs counter to the Supreme Court's growing recognition that discrimination on the basis of sexual orientation is unlawful. In Oncale v. Sundowner Offshore Services, Inc., the Court ruled that Title VII of the Civil Rights Act of 1964 prohibited same sex harassment. The Court's well-known ruling in Obergefell v. Hodges established the Constitutional right to same sex marriage.
Not only the EEOC but also the Seventh Circuit, not notoriously liberal, have come around to the view that sexual orientation is protected against discrimination in employment. In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit en banc concluded that sexual orientation was protected in two ways. The first is that discrimination against gays is the result of sexual stereotyping.. The courts have struck down discrimination based on gender stereotypes, as in Price Waterhouse v Hopkins, in which Hopkins, despite being the highest grossing associate, was not promoted because she was not feminine enough. Second, the courts have struck down discrimination based on association with persons of a different protected class in cases such as Loving v. Virginia, in which the Supreme Court ruled that the state could not prohibit interracial marriage.
Now Jeff Sessions is so concerned that the Second Circuit will follow suit that DOJ has submitted an amicus in a case which it is not litigating, seeking to persuade the court to uphold outdated pre-Obergefell precedents. Hopefully, the Second Circuit will decline to do so.
Of course, with Neil Gorsuch now on the Supreme Court, the GOP eager to pack the courts with far right judges, and the Congress potentially willing to roll back the Civil Rights laws, the future of the issue is uncertain. For now, however, despite the Influence of the DOJ, it is the courts that decide.