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Yesterday is Gonna Go Down In History as the Day LGBT Rights Died


Yesterday really was anti-LGBT day here in the U.S.  President Donald Trump’s appalling tweets declaring that transgender people aren’t really “people” and that transgenderism is simply too inconvenient to tolerate were apparently the tip of the hateful iceberg. Also unveiled yesterday was an amicus brief, filed by our Department of Justice (a department name which is starting to seem as ironic as “Reich Ministry for Public Enlightenment”) urging the Second Circuit to take the position that a person’s sexual orientation has nothing to do with that person’s gender.

Last week, I wrote about Lambda Legal’s decision to pursue the appeal of an Eleventh Circuit case after that court denied Jameka Evans’ employment discrimination claim on the basis that Title VII may prohibit sex discrimination, but that it’s perfectly cool with discrimination against someone’s sexual orientation. The Trump administration threw its hat into the ring yesterday with a supportive filing urging the Second Circuit to take the same stance in Zarda v. Altitude Express — the case of a New York skydiving instructor fired from his job because he was gay.

In the DOJ’s amicus brief, it makes several unconvincing arguments that are clearly rooted in a firm commitment to obfuscate the spirit of Title VII, and frankly, the entire Civil Rights Act generally. It urges the Second Circuit to reject the Seventh Circuit’s logic in that:

A policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex.

Among the gems of reasoning advanced in the DOJ’s brief was the argument that employment discrimination against LGB people is legal, because it’s also legal for companies to have different dress codes for men and for women. Also, according to the brief, an employer would have violated Title VII if it fired gay men and not gay women – but if that same employer treated gay men differently from straight men, all would be well in the eyes of the law. And the real heart of our government’s argument lies nestled unceremoniously on page 27 of its filing:

where an employer discriminates against a female employee solely because she is gay… it is not necessarily true that the employer has ‘actually relied on her gender…’ Rather, the employer may have treated homosexuality differently for reasons such as moral beliefs about sexual, marital, and familial relationships that need not be based on views about gender at all.

In other words, we at the DOJ will twist ourselves into pretzels to make legal arguments that prioritize the “rights” of the intolerant over basic logic, good sense, and common decency. I can suspend my disbelief long enough to listen to arguments about the limitations of Title VII, but give me a break. Homophobia isn’t based on views about gender? Then what the hell is it based on, views about casserole recipes? Private groups (like, just as an example, the anti-LGBT group that our attorney general likes to pal around with) are free to spread their bigotry via amicus briefs, but this nonsense is coming from our government.  This is less a gay issue than a logic issue, and our government is on the wrong side of both.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos