by Katie Eyer, Associate Professor at Rutgers Law School
*Her Issue Brief on this subject, Sex Discrimination Law and LGBT Equality is available on the ACS website.
The last week of July confirmed what many people already knew: that the Trump administration is no friend to LGBT rights. On July 26, 2017, the President declared, by tweet, that “the United States Government will not accept or allow…Transgender individuals to serve in any capacity in the U.S. Military.” That same day the Trump Justice Department filed an amicus brief in private litigation urging the 2d Circuit to find that gays and lesbians are not covered by federal antidiscrimination law.
Thirty years ago, these actions might have been seen by the courts—and much of the public—as unexceptional expressions of the common-sense notion that the LGBT community lacks anti-discrimination protections under the law. But much has changed in the last three decades. The Supreme Court has repeatedly reaffirmed that the LGBT community is protected by the equality and due process provisions of the constitution. And the lower courts have increasingly recognized that the LGBT community is protected under statutory anti-discrimination law as well.
The Trump administration’s brief in Zarda v. Altitude Express—urging the 2d Circuit to carve gays and lesbians out of the protections of Title VII—puts the Trump administration in opposition to well-established anti-discrimination principles, and counter to the unmistakable direction of the courts. As such courts have increasingly recognized, applying federal anti-discrimination law faithfully, it is clear that discrimination against the LGBT community is, in fact, also sex discrimination—a form of discrimination that is already widely prohibited under federal statutory law.
To take just one example, federal anti-discrimination law prohibits adverse actions taken “because of” the sex of the victim. This includes actions that would have been different “but for” the sex of the victim—a principle that the Supreme Court has long recognized. In each and every case of sexual orientation discrimination, this condition is satisfied. For example, an employer who engages in sexual orientation discrimination by firing Karen for putting a picture of her wife on her desk would not have fired Mark for taking an identical action. So too in the context of gender identity discrimination, an employer who discriminates against an employee because of their transgender status—for example, firing a transgender woman because she wore a dress to work—has done so because of the employer’s perception that the employee is a man who should not be wearing a dress. But for the employee’s perceived sex, the outcome would have been different.
The Trump administration’s brief ignores this common-sense reasoning, and falls back on what has long been the leading argument of opponents of LGBT equality in the statutory realm—that Congress surely could not have intended for sexual orientation and gender identity to be prohibited under federal sex discrimination law. But this argument runs afoul of well-established principles of statutory interpretation, which make clear that it is inappropriate to carve exceptions out of broad and clear statutory text based on what the enacting Congress might have wanted or expected. As no less an authority than Justice Scalia put it, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
The Trump administration’s brief also, secondarily, attempts to make an argument that existing anti-discrimination doctrine does not inexorably lead to the conclusion that sexual orientation discrimination is sex discrimination. But here too its arguments run afoul of well-established precedent. Indeed, the principle argument of the administration—that sexual orientation discrimination can’t be sex discrimination because men and women are treated equally badly—is one that the Supreme Court rejected as a viable anti-discrimination defense 50 years ago, in the seminal case of Loving v. Virginia.
In the past, the courts were reluctant to apply these well-established principles of anti-discrimination law to permit LGBT anti-discrimination claims. But as the idea of LGBT equality has come to be seen as common sense, rather than exceptional, more and more courts have been able—and willing—to faithfully apply the law. In opposing that trend, the Trump administration sets itself against the weight of neutral legal principles, and against the tide of history.