Feds to court: Title VII allows discrimination on sexual orientation
The Trump administration already has reversed an Obama mandate that schools open their girls’ showers to boys, and just this week said it would no longer allow transgenders in the U.S. military.
Now there’s a third move in the fight against normalizing alternative sexual lifestyle choices: the federal government is arguing in court that Title VII of the Civil Rights Act of 1964 does not include sexual orientation or gender identity when it bans gender discrimination.
The issue is huge. Not only do activists for the sexual alternatives fight for their agenda in the federal setting, they use victories there to force states, counties, cities and others to bend to their will.
The case is Zarda v. Altitude Express and it’s being heard at the 2nd U.S. Circuit Court of Appeals at this time.
The case started in 2010 when Donald Zarda, who taught skydiving, sued his employer claiming he was fired for his sexual orientation. He claims that violated Title VII.
The cause now is before the full panel of judges at the court, which has invited other interested parties to comment. The federal Equal Employment Opportunity Commission filed in support of Zarda, claiming Congress in the 1960s knew full well that it was advocating for gender orientation rights when it adopted the law.
But the U.S. Department of Justice filed a brief challenging that claim. It explains that the court should rule that “Title VII does not prohibit discrimination because of sexual orientation.”
“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse that similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.
“Moreover, whatever this court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination.”
The federal government stepped in – against one of the government’s own agencies – because it is responsible for enforcing the law.
“The question presented is not whether, as a matter of policy, sexual orientation discrimination should be prohibited by statute, regulations, or employer action…. The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades,” the brief explains.
Changes to the law “should be directed to Congress rather than the courts,” it said.
Judges in the past, in fact, have decided that “in common, ordinary usage in 1964 – and now, for that matter – the word ‘sex’ means biologically male or female.”
It’s a case that’s been monitored closely by officials with the national rights organization, Liberty Counsel.
It explained, “The Equal Employment Opportunity Commission (EEOC), a largely autonomous federal agency that handles civil rights disputes in the workplace, supported Zarda last month in its own court filing. The EEOC has previously argued in federal court that Title VII’s ban on sex discrimination also included gender identity – thereby barring discrimination against so-called LGBT employees.”
It continued, “The DOJ, which doesn’t typically weigh in on private employment lawsuits, argues in the amicus brief that ‘the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. The theories advanced by the EEOC and the Seventh Circuit lack merit and these theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.'”
Mat Staver, chief of Liberty Counsel, added, “Passed in 1965, the Title VII employment provision does not include sexual orientation or gender identity.
“No government entity outside of the legislative process can grant special rights to a subset of the population based on demand or a desire to rewrite the law. Judges are not legislators. Only Congress can amend the federal law, and that diverse body of legislators has rejected several requests to do so. I applaud the DOJ for upholding the rule of law,” said Staver.
The government brief also notes pointedly that “every subsequent Congress since 1991 … has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.”
The filing continued, “To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so.
“In sum, an employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex. Gay men and women are treated the same, and straight men and women are treated the same. Of course, if an employer fired only gay men but not gay women (or vice versa), that would be prohibited by Title VII – but precisely because it would be discrimination based on sex, not sexual orientation.”
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