2nd Circuit: Title VII of the Civil Rights Act of 1964 Applies to Gays

As numerous posts on this blog have noted, the Trump/Pence regime has been going to great lengths to roll back LGBT rights and to undo LGBT friendly regulations from the Obama administration.  Part of this anti-gay animus motivated agenda has been to have the U.S. Justice Department under Attorney General Jeff Sessions - who has a decades long history of being an enemy of LGBT individuals - to intervene in cases in which the U.S. Government is not even a party. Today, this ploy backfired mightily when the U.S. Court of Appeals for the 2nd Circuit sitting en banc ruled that Title VII of the Civil Rights Act of 1964 applies to LGBT individuals and bars anti-LGBT discrimination.   The ruling is a major defeat for the Trump/Pence regime which only the U.S. Supreme Court, were it so inclined, could overturn.  BuzzFeed looks at this welcomed ruling and slap in the face to the always disingenuous Sessions.  Here are excerpts:

A federal appeals court on Monday ruled that a 1964 civil rights law bans anti-gay workplace discrimination. The decision rebukes the Trump administration — which had argued against a gay worker in the case — and hands progressives a win in their strategy to protect LGBT employees with a drumbeat of lawsuits.

The dispute hinges on whether Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, also bans workplace discrimination due to sexual orientation.

The Court of Appeals for the 2nd Circuit ruled Monday, “We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII.” In doing so, the court overruled a lower court — and a precedent from two previous court cases — and remanded the case to be litigated in light of their reading of Title VII.

The decision holds national implications due to its high tier in the judicial system, and because it’s seen as a litmus test of the Trump administration’s ability — or inability — to curb LGBT rights through court activism. The Justice Department had injected itself into the case even though it wasn’t a party to the lawsuit and doesn’t normally involve itself in private employment disputes.

The case was heard in New York City by all 13 judges in the 2nd Circuit, known as an en banc hearing, which leaves the Supreme Court as the only avenue for a potential appeal.

The ruling comes soon after another major gay-rights ruling in 2017, thereby giving momentum to the argument that anti-gay discrimination is prohibited even without a federal law that explicitly says so.

[T]he court pointed out that anti-gay discrimination would not exist "but for" a person's sex. That is to say, gays, lesbians, and bisexuals would not experience this type of unequal treatment had they been born a different gender, or were attracted to a different sex.

"A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women," the majority wrote in an opinion led by Judge Robert Katzmann. "We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."

Zarda’s lawyers deployed an emerging legal argument that contends Title VII applies to gay workers.

That position has been adopted by the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace and supported Zarda in court.

An EEOC lawyer told the judges at a September hearing in Manhattan, “Sex stereotyping says that if you are a man attracted to a man, or a woman attracted to a woman, you’re not behaving the way those genders are supposed to behave.”

But the Justice Department took opposite stance, thereby pitting the federal government against itself.

Under Sessions, the Justice Department has tried to roll back several LGBT gains, rescinding Obama-era policy that protects transgender students and reversing a policy that said Title VII protects transgender workers. Sessions also filed a brief at the Supreme Court in favor of a Christian baker who refused a wedding cake to a gay couple, and in Zarda’s case, argued Title VII also doesn’t encompass sexual orientation.

On Monday, the 2nd Circuit found "sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected."

2nd Circuit Not Receptive to Trump DOJ Anti-Gay Arguments

The U.S. Court of Appeals for the Second Circuit sitting en banc heard arguments in Zarda v. Altitude Express and witnessed representatives of the Trump Department of Justice ("DOJ") argued that existing federal non-discrimination and equal rights laws do not extend to LGBT Americans. The motivation of Trump DOJ was simple: delivering on Trump's promises to Christofascists and "family values" hate groups that were made to ensure a pro-Trump turnout by evangelical Christians (using the term "Christian" very loosely if one believes in the Gospel message).  In opposition was the U.S. Equal Employment Opportunity Commission ("EEOC") argued that the existing laws do apply to LGBT Americans.  Based on the arguments and the  Court's judges were less than receptive to the pro-discrimination arguments of the Donald Trump/Jeff Sessions minions.  A piece in Slate.com looks at the 2nd Circuit's cool reception to the pro-hate and discrimination advocates.  Here are highlights:

The U.S. Court of Appeals for the 2^nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary. The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2^nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination does protect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2^nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning. Arguments dragged on for nearly two hours, but EEOC attorney Jeremy D. Horowitz seized the upper hand early by capably explaining the agency’s three theories:

1. The “but-for” theoryThis argues that anti-gay discrimination qualifies as sex discrimination because, but for the gay person’s sex, he would not suffer discrimination. For instance, consider a homophobic employer who fires a male employee because he marries a man. But for that employee’s sex, he wouldn’t have been discriminated against and lost his job.

2. The sex stereotyping theoryIn 1989’s Price Waterhouse v. Hopkins, the Supreme Court ruled that sex stereotyping—punishing a worker for her failure to conform to gender norms—is a kind of sex discrimination. At first, courts only applied sex stereotyping to masculine women and feminine men. But as the 7^th U.S. Circuit Court of Appeals explained in March, gay people are “the ultimate case of failure to conform” to sex stereotypes, since men and women are typically expected to date only individuals of the opposite sex.

3. The associational sex discrimination theoryThis holds that anti-gay bias constitutes sex discrimination much like anti-miscegenation laws constituted race discrimination. When states prohibited a white person from marrying a black person, they were committing discrimination because of race. It follows that when an employer punishes a gay person for associating with a same-sex partner, he has committed discrimination “because of sex.” 

Horowitz made his case well, forcefully elucidating why “sexual orientation cannot be separated from sex.”  That set the stage for Mooppan’s appearance, which, to put it mildly, did not go well at all. Chief Judge Katzmann immediately wanted to know: Why didn’t the DOJ defer to the EEOC on Title VII, as it normally does? Mooppan’s basic reply was that the Justice Department is the nation’s “largest employer”—meaning, in short, that it has an interest in retaining its capacity to fire gay people for being gay. Katzmann . . . . wanted to know what career attorneys at the DOJ’s civil rights division think about the agency’s position. But Mooppan wouldn’t answer: “That’s not appropriate for me to disclose,” he told the judge. Katzmann looked alarmed. Now a majority of the judges looked irritated. As a general rule, attorneys are supposed to answer questions posed by the court, not dodge them as though they’re taking the Fifth. It was a terrible start for Mooppan, and both Pooler and Katzmann looked genuinely perplexed that a DOJ attorney would show such blatant disrespect. Finally, Judge Dennis Jacobs broke the impasse: “I, for one, am prepared to proceed on the assumption that you’re here,” he said. Judge Jacobs asked Mooppan whether he can refute the EEOC’s associational discrimination theory and its parallel to interracial and interfaith marriage. “When you discriminate against interracial marriage,” Mooppan responded, you are promoting “racial superiority.” When you discriminate against interfaith marriage, you are promoting “religious superiority.” That makes the comparison to homosexuality moot. When arguments concluded, it seemed inevitable that the court would agree with the EEOC, reject the DOJ’s wackadoodle theories, and find that Title VII already proscribes anti-gay employment discrimination. After Tuesday’s performance, the Justice Department’s involvement in the case may have actually swung a judge or two away from its position; its flagrantly political intrusion seemed to irk even the Republican appointees. Anti-gay activists may have taken control of the DOJ—but they seem unlikely to persuade the 2^nd Circuit that America’s gay employees don’t deserve civil rights.

Trump DOJ Continues Attacks on LGBT Americans

While Der Trumpenführer's diktat against transgender members of the military is receiving the most media attention, another sinister effort is being pushed by Trump's Department of Justice that would declare that Title VII of the Civil Rights Act of 1964 does not afford any protections to LGBT individuals targeted for discrimination.  Specifically, Attorney General Jeff Sessions - a man with a long history of both racism and anti-LGBT animus - filed an amicus brief filed in Zarda v. Altitude Express, Inc., pending in the U.S. Court of Appeals for the Second Circuit.  The case involves an employee, Donald Zarda, a skydiving instructor, who filed suit against his employer in federal court in New York, alleging that the company terminated him for his sexual orientation in violation of Title VII.   The Equal Employment Opportunity Commission ("EEOC")  supported Zarda last month in its own court filing.  BuzzFeed looks at the case and Trump/Sessions' effort to leave LGBT with no non-discrimination protections (something that would thrill Christofascists and evangelical Christians). Here are highlights:

The U.S. Justice Department on Wednesday argued in a major federal lawsuit that a 1964 civil rights law doesn’t protect gay workers from discrimination, thereby diverging from a separate, autonomous federal agency that had supported the gay plaintiff’s case.

The Trump administration’s filing is unusual in part because the Justice Department isn’t a party in the case, and the department doesn’t typically weigh in on private employment lawsuits.

But in an amicus brief filed at the US Court of Appeals for the Second Circuit, lawyers under Attorney General Jeff Sessions contend that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, does not cover sexual orientation.

The Justice Department also contends that Title VII only applies if men and women are treated unequally.

"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," the brief says.

After a lower court ruled and the case was appealed, the 2nd Circuit invited outside parties to weigh in. Zarda v. Altitude Express is now before before a full panel of judges at the court.

Among Zarda’s boosters is the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace, which supported Zarda last month in its own court filing.

For several years, the EEOC has declared in federal court that Title VII bans anti-gay discrimination, saying it is based on sex stereotyping, and therefor discrimination on the basis of sex.

If Zarda’s argument were to prevail — despite his death in base-jumping accident in 2014 — it would set new precedent in the circuit by overturning two cases from the 2000s.

Further, it would give momentum to the argument as a general matter, given that the 7th Circuit ruled in favor of lesbian in April who made the same claim.

Earlier on Wednesday, Trump announced he would end all transgender military service.

“On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights," said a statement from James Esseks, director of the American Civil Liberties Union's LGBT & HIV Project. "The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination."

Let it not be forgotten that every friend, family member or neighbor of an LGBT American voted for this attack on our basic civil rights when they voted for Donald Trump. Do NOT give them a pass or forgive them for the harm that they set in motion and will be continuing to support as long as they continue to support Trump and the GOP more generally.  With "friends" like these Trump supporters, one doesn't need an enemy.