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The Second Circuit decided in favor of the Zarda estate Bostock’s case was dismissed in lower courts. Zarda died in 2014, and his partner and sister have continued the lawsuit on behalf of his estate. That brief also argued against extending Title VII protections to gay workers. The Department of Justice previously submitted an amicus brief in 2017 when the Zarda case went before Second Circuit Court of Appeals. In the other case, a skydiving instructor, Donald Zarda, also claimed he was fired for being gay. Clayton County, Georgia, Gerald Bostock, a former county government employee, claimed he was fired because of his sexual orientation. The Justice Department’s most recent brief pertains to two cases currently slated to be argued before the Supreme Court. “Some of my biggest supporters are of that community.” “I’ve done very well with that community,” the President said last week. Several members of that group have quit in response to the endorsement, however, including board member Jennifer Horn. “Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex,” the Justice Department argued, “but instead of an employer’s policy concerning a different trait-sexual orientation-that Title VII does not protect.”Īsked last week about his administration’s legal steps to make it easier to discriminate against LGBTQ people in the workplace, Trump sidestepped the question, touting his recent endorsement by the Log Cabin Republicans, a national LGBTQ organization. In other words, as long as male and female members of the queer community are treated equally, the brief appears to argue, it is not a violation of Title VII to treat them differently than people in heterosexual relationships. The brief goes on to assert that discriminating against same-sex couples is not discriminatory on the basis of sex - arguing that employers are only required to apply similar treatments to people in male-male relationships and female-female relationships. Toeing a similar line, federal lawyers now argue that “Title VII’s prohibition on discrimination because of sex does not bar discrimination because of sexual orientation.” By effectively drawing a distinction between sex and sexual identity, the brief aims to carve out the latter from Title VII’s protections.
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But it does not, the Justice Department says, cover sexuality.Įarlier this month, the Justice Department submitted another brief asking the Justices to conclude that Title VII does not protect transgender people from employer discrimination.