This month, the Trump Administration opposed protections for LGBTQ workers in the U.S., arguing that existing laws should not cover discrimination on the basis of gender identity and sexual orientation. Their reasoning? That an act passed in 1964 did not explicitly include either criteria and if Congress wanted to amend the law, it would have already.
But what exactly is this law? And how will this affect similar cases of discrimination in the future?
What did the Trump Administration argue, exactly?
On Friday, the Trump Administration submitted two separate briefs which argued that Title VII of the 1964 Civil Rights Act does not protect against discrimination in the workplace based on sexual orientation. Earlier this month, the administration also submitted a brief that opposed protection for those discriminated on the basis of gender identity, affecting the rights of transgender individuals.
The briefs were submitted before the Supreme Court and specifically concerned three ongoing cases of discrimination at work filed by three LGBTQ individuals. (Two cases concern sexual orientation and one case involves gender identity discrimination.)
For context, Title VII of the Civil Rights Act—a landmark ruling—details “unlawful employment practices” which includes protection against discrimination on the basis of “race, color, religion, sex, or national origin.”
Given the year in which it was passed, the act never explicitly addressed protections for LGBTQ workers. Currently, there is no existing federal law to protect LGBTQ individuals from discrimination in any capacity, including at work, though cities or states may pass local laws to prevent such discrimination. There have been attempts, however—the Equality Act was designed to amend the original Civil Rights Act and passed in the House, though it was never brought to a vote in the Senate.
As we’vewritten before, to circumvent this, advocates have argued that Title VIIalreadyprotects LGBTQ workers because it’s equal to sex discrimination; you couldn’t fire a woman for being attracted to women if a man is also attracted to women and still retains his job, for example.
The Trump Administration, however, doesn’t see it this way. “[A]t the time Congress enacted Title VII, ‘sex,’ ‘sexual orientation,’ and ‘gender identity’ had different meanings,” one brief said. “As a result, the word ‘sex’ in Title VII cannot be fairly construed to mean or include ‘sexual orientation’ or ‘gender identity.’”
Why is this important?
AsSnopesput it, if the court were to agree with the Trump Administration, it might bind lower courts to a similar decision, effectively making it legal to fire employees purely on the basis of sexual orientation and gender identity.
“The only way to change that state of affairs would likely be for Congress to pass a measure that explicitly added sexual orientation to anti-discrimination statutes, as a separate protected trait, along with sex, race, religion, and so on,”Snopes’Dan Macguill writes. Similarly, Congress would also have to pass a measure explicitly adding gender identity, too.
It would also very likely make it difficult, if not impossible, for other cases of discrimination to proceed.
“Such a ruling would be disastrous, relegating LGBTQ people around the country to a second-class citizen status,” James Esseks, director of the ACLU’s LGBT & HIV Project,said in a statementregarding two of the cases. “The LGBTQ community has fought too long and too hard to go back now, and we are counting on the justices not to reverse that hard-won progress.”
What happens next?
The Supreme Court will hear arguments concerning three cases of discrimination against LGBTQ workers on October 8.
While little will happen until then, 150 members of Congress also filed their own brief in support of LGBTQ workers in July.
“Fifty-five years after the Civil Rights Act was signed into law, it has become a pillar of fairness in our democracy, helping us make real the promise of our founding–that all are created equal,”Nancy Pelosisaid in a statement regarding the brief. “While Republicans and the Trump Administration push a hateful anti-LGBTQ agenda and fight against our march toward progress, we will make clear in the courts and in Congress that liberty, justice, and equality are America’s guiding principles–not bigotry or discrimination.”