For the second time in a week, the Trump administration has lobbied the Supreme Court to legalize discrimination against LGBTQ+ workers.
On Friday, the Department of Justice (DOJ) filed a brief in a trio of cases set to be heard by the nation’s highest bench on October 8. In hearing Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide if LGBTQ+ employees are entitled to workplace protection under Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of characteristics like national origin, religion, race, ethnicity, color, and sex.
Noel Francisco, a solicitor general with the DOJ, argued in an amicus brief filed to the court that the 55-year-old civil rights law cannot be interpreted to ban discrimination against gay, lesbian, bisexual, and queer workers because it was not the original intention of the legislation’s authors.
“The question here is not whether Title VII should forbid employment discrimination because of sexual orientation, but whether it already does,” Francisco wrote. “The statute’s plain text makes clear that it does not; discrimination because of ‘sex’ forbids treating members of one sex worse than similarly situated members of the other — and discrimination on the basis of sexual orientation, standing alone, does not result in such treatment.”
That opinion concerns two of the cases before the Supreme Court: one in which a gay skydiving instructor, Donald Zarda, was fired after he disclosed his sexual orientation to a client and a second in which a welfare services coordinator, Gerald Bostock, was targeted for harassment and discrimination after he joined a gay softball league.
The final case is unrelated to sexual orientation. Instead it regards a transgender funeral home employee, Aimee Stephens, who was dismissed from her job after she began transitioning.
The Trump administration weighed in on Stephens’ case last week using a nearly identical argument to that put forward today. As Out previously reported, the August 16 brief filed to the Supreme Court does not use female pronouns to describe her.
“Title VII does not prohibit discrimination against transgender persons based on their transgender status,” the Justice Department claimed. “It simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”
The White House instead claimed the law is intended to prohibit “treating an individual less favorably than similarly situated individuals of the opposite sex.”
As the Supreme Court appears to weigh in on the pivotal cases — which will affect employment protections in the 29 states that lack comprehensive protections for LGBTQ+ workers — the Trump administration is doing everything in its power to influence the court’s decision. It has also reportedly lobbied the Equal Employment Opportunity Commission (EEOC) to reverse its stance that queer and trans workers are protected under federal law.
Roy Moore, an accused pedophile and disgraced Alabama Supreme Court judge, has also chimed in regarding the impending Supreme Court proceedings. In a brief filed to the bench earlier this week, his organization, the Foundation for Moral Law, claimed the lawmakers behind the Civil Rights Act of 1964 would find LGBTQ+ nondiscrimination “repulsive and horrifying.”
“In 1964, homosexual conduct was a crime in all 50 states,” the organization claims in an opinion submitted to SCOTUS on August 16. “It was widely considered to be immoral, unnatural, and a danger to national security. The idea that the Framers of the Civil Rights Act of 1964 intended that the term ‘sex’ should be defined in a way that their respective states and constituents would have considered abhorrent, is absurd.”
The critical hearings will begin in just over six weeks' time.