According to sources from the Washington Blade, Jeff Sessions and the Justice Department intends to file a friend-of-the-court brief that would affirm the view of the three-judge panel on the Second Circuit who in April determined Title VII doesn’t prohibit anti-gay discrimination in the case of Zarda v. Altitude Express which alleges Donald Zarda, who has since passed away was fired from his job in 2010 for being gay.
Such a brief would reverse a position under former U.S. Attorney Eric Holder asserting discrimination on the basis of gender identity is prohibited under Title VII. In a 2014 memo, Holder wrote the Justice Department will no longer assert Title VII’s prohibition on gender discrimination “does not encompass gender identity per se (including transgender discrimination).”
The current case is under review at the request of Lambda Legal has agreed to reconsider the ruling “en banc,” or before the full court.
James Esseks, director of the ACLU’s LGBT and HIV Project, states that filing such a brief would be going out of its way to undermine LGBT rights.
“This would be a gratuitous and extraordinary attack on LGBT people’s civil rights,” Esseks said. “DOJ would be reaching out to offer its opinion on these issues, since they are not a party to this case. That’s not championing LGBT people, it’s working affirmatively to expose us to discrimination. But fortunately, whether the Civil Rights Act protects LGBT people is ultimately a question for the courts to resolve, and not for the attorney general. We are confident that the courts will come to the right decision here.”
Even though the Justice Department brief would be restricted to an interpretation of law related to employment, it could have implications for other federal laws barring sex discrimination in housing and education and seems to be at odds with the position of the Education Department.
If you think this is not an all out war against the LGBT community. Think again.