The Trump administration's Department of Justice has asserted in a federal court case that employers should be allowed to fire employees for being homosexual. While President Donald Trump touted a LGBTQ-friendly stance on the campaign trail, his DOJ has argued that workplace protections from the Civil Rights Act did not apply to sexual orientation.
On Sept. 26, the 2nd Circuit Court of Appeals heard arguments for Zarda v. Altitude Express, in which DOJ attorney Hashim Mooppan argued that the Title VII provision of the 1964 Civil Rights Act, which protects employees from being fired for their sex, did not extend to sexual orientation.
"Employers under Title VII are permitted to consider employees' out-of-work sexual conduct," Mooppan said. "There is a common sense, intuitive difference between sex and sexual orientation."
The court hearing was unusual because the DOJ was arguing against another federal agency, the Equal Employment Opportunity Commission. In 2015, the EEOC filed a brief asserting that Title VII did protect employees from being fired for their sexual orientation. In July 2017, U.S. Attorney General Jeff Sessions filed an unsolicited amicus brief arguing against the EEOC's opinion, Slate reports.
"We love to hear from the federal government," Judge Rosemary Pooler told both Mooppan and EEOC attorney Jeremy D. Horowitz. "But it's a bit awkward to hear from them on both sides."
While the DOJ's stance was it was lawful for employers to terminate workers who were gay, Horowitz argued that Title VII applied to sexual orientation because "sexual orientation cannot be separated from sex."
Mooppan faced questions from the panel judges asking why the DOJ would choose to insert itself into a court case against another federal agency. The DOJ lawyer responded, "It's not appropriate for me to comment."
Greg Nevins of Lambda Legal, which represented the late Donald Zarda, blasted the DOJ's stance in the case.
"[It's] as conservative as it could possibly get: If having sex with a man is OK for a woman, it has to be OK for a man as well," Nevins told Newsweek. "You cannot apply a different rule based on gender, according to the law. Apparently, that wasn't conservative enough for the DOJ."
Nevins added: "Trump touted his pro-LGBTQ credentials last year [but] one thing that’s preserved what’s left of his approval rating is that there are people who are happy with his administration fighting the good fight for them."
On Sept. 8, the DOJ also filed an amicus brief in the upcoming U.S. Supreme Court case Masterpiece Cakeshop v. Civil Rights Commission. The case was between baker Jack Phillips, who refused to make a wedding cake for two same-sex customers, and the Colorado Civil Rights Commission, which asserted that Phillips' refusal amounted to discrimination. The DOJ's unsolicited amicus brief asserted that prohibiting business owners from providing services to LGBTQ people violated their freedom of speech.
Deputy legal director Louise Melling of the American Civil Liberties Union, which is representing the same-sex couple in the case, blasted the Trump administration's DOJ for both of its amicus briefs, asserting that it signaled an interest in curbing LGBTQ rights.
"Even in an administration that has already made its hostility [clear]. ... I find this nothing short of shocking," Melling told The Washington Post.