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Trump Administration Says Gays Aren't Protected By Federal Civil Rights Act

Civil Rights Act
Jacquelyn Martin/AP

"In one fell swoop, Trump's DOJ has provided a roadmap for dismantling years of federal protections."

The Trump Administration's Department of Justice, led by Attorney General Jeff Sessions, filed a brief to an Appeals Court yesterday arguing that gay, lesbian, and bisexual people are not protected under the historic Civil Rights Act of 1964, which protects Americans from disrimination based on race, sex, color, religion, and national origin.

In the brief filed by the Department of Justice, which you can read in its entirety here, the Trump Administration argues that the Civil Rights Act of 1964 does not protect gay employees, "as has been settled for decades. Any efforts to amend Title VII's [of the Act's] scope should be directed to Congress rather than the courts. 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."

Federalcourts and the U.S. Circuit Court of Appeals have repeatedly ruled over the past 15 years that the Act does, indeed, protect gay employees, under the basis of discriminatory behavior due to sex. They've reached their conclusion by referencing three arguments that discrimination based on sexual orientation falls under the jurisdiction of discrimination based on sex: One, the "but-for" argument, which says that anti-gay discrimination would not exist but for the sex of the gay person being targeted.

The second argument is that sex stereotyping counts as sex discrimination. If a worker is not conforming to traditional gender norms and is thus discriminated against, they are protected by the Civil Rights Act of 1964. And, courts have argued and upheld, being gay is an ultimate form of rejecting "traditional" gender norms.

Finally, there's the associational sex discrimination argument. In the same way that a white person can be the subject of discrimination for marrying a black person, so too is a man the target of discrimination for having relations with another man.

Related | President Trump Bans Transgender People From Serving in Military

Naturally, activist groups around the country have reacted angrily to the brief. Sarah Warbelow, Legal Director for the Human Rights Campaign, released a statement saying:

"In one fell swoop, Trump's DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act, Title IX, or Title VII. For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law."

The American Civil Liberties Union also called out Trump, tweeting this:

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