Owen H. Laird and Walker G. Harman, Jr.
On Wednesday, President Trump and his administration took two major actions against LGBT rights: First, President Trump tweeted that transgender people would no longer be allowed to serve in the U.S. military; then, the Department of Justice (DoJ) filed a brief in an ongoing Second Circuit case, arguing that Title VII of the Civil Rights Act of 1964 (Title VII)—a major federal anti-discrimination statute—does not prohibit discrimination based on sexual orientation. These two actions clearly demonstrate Trump’s position on LGBT rights: He does not support them, and his actions are disturbing and intolerant. As Trump forces the LGBT community—and all of us—to take giant steps backward, we all need to bear arms (so to speak) to protect the rights of all those marginalized within the LGBT community.
Last year, President Obama instituted a new policy allowing transgender people to serve in the military. On Wednesday, President Trump, via Twitter, announced that transgender people would no longer be able to serve, claiming that the armed forces could not afford the “tremendous medical costs and disruption” supposedly caused by transgender people serving in the military. Trump provided no empirical support for his offensive statement. The backlash against Trump’s statement was swift, with Democrats and LGBT advocates swiftly decrying the decision. There are estimated to be anywhere between 5,000 and 15,000 transgender people currently serving in the U.S. military, and Trump’s announcement puts their careers at risk.
Although the brief filed by the DoJ later on Wednesday does not have the immediate impact that Trump’s tweets did, it has much broader-reaching implications. We have previously reported on the case in question, Zarda v. Altitude Express, where the U.S. Circuit Court of Appeals for the Second Circuit recently agreed to an en banc review of a decision concerning sexual orientation discrimination under Title VII.
On Wednesday, the DoJ submitted an amicus curiae brief in Zarda, arguing that the court should not interpret Title VII to protect workers against sexual orientation discrimination. This contradicts the position taken in 2016 by the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing Title VII. The EEOC has argued that Title VII does, in fact, bar employers from discriminating against employees on the basis of their sexual orientation. In fact, the EEOC filed its own amicus brief in the case, supporting the plaintiff, Mr. Zarda.
The DoJ’s brief has no immediate effect, as the Second Circuit still must rule on the case, at which point the losing party is likely to try to appeal the case to the U.S. Supreme Court. Nonetheless, the potential ramifications of the DoJ’s brief, and the outcome of the Zarda case, are far-reaching. Title VII applies to millions of workers across the United States, many of who do not have any other legal protections against sexual orientation discrimination in the workplace. Trump’s continued efforts to undo virtually every achievement of the Obama administration—the Affordable Care Act, the expansion of LGBT rights, the Paris climate accords, and more—put millions at risk. And as Trump recently appointed the swing vote to the U.S. Supreme Court, legal challenges to Trump’s actions will face another hurdle with a conservative-leaning Court.
Trump’s recent actions were particularly galling to LGBT advocates who heard Trump promise during his campaign that he would be a “friend” to the LGBT community; he is, in fact, no friend to the LGBT community. Even though Trump himself has been largely ineffectual as a president—and despite even his recent public dispute with Attorney General Jeff Sessions—these recent moves make clear that the Trump administration is still capable of damaging the institutions that Americans rely on for support and protection.
We find Trump’s increasing displays of homophobia and transphobia sickening and disturbing. If you believe that your employer has discriminated against you because of your sexual orientation or gender identity, contact The Harman Firm, LLP.