In 2010 former skydiving instructor Donald Zarda sued a company that allegedly fired him for being gay. But on Wednesday the Department of Justice told a Manhattan federal appeals court not to accept the case. The reason? The DOJ is arguing that LGBT people aren't legally protected from workplace discrimination.
Zarda (who has since passed away in a base-jumping accident) argued that he was protected under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, race, skin color, national origin, and religion. Fifty companies filed a brief for the case advocating for LGBT employees' right to sue for discrimination.
There's legal precedent for including sexual orientation and gender identity under the "sex" category of Title VII. In the 2015 case Layana White and Haley Videckis v. Pepperdine University, a federal judge ruled that two lesbian students could sue their school for discrimination on the grounds that "claims of sexual orientation discrimination are gender stereotype or sex discrimination claims."
The DOJ could now set a very different—and dangerous—precedent. "An employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex," the department's brief reads. "Gay men and women are treated the same, and straight men and women are treated the same…. This court should reaffirm its precedent holding that Title VII does not prohibit discrimination because of sexual orientation."
The DOJ's decision came on the same day that Trump announced a ban on trans people in the military, James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, pointed out in a statement to Bloomberg: "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."
"President Trump, who touted himself as a ‘friend’ of the LGBT community on the campaign trail, has instead proven his hostility to this community since taking office," David Dinielli, deputy legal director at the Southern Poverty Law Center, said in a statement to Glamour. "This brief demonstrates that his administration is determined to impose retrograde policies that roll back the civil rights of our most marginalized populations. In doing so, the administration is pandering to anti-LGBT extremists who are far outside the mainstream."
