At the end of July, the Justice department rolled back policies put in place under President Barack Obama, arguing that sexual orientation is not protected under current federal civil rights laws. It did this by filing court papers, inserting itself into a federal court case in New York.
The move is unorthodox. Typically, top Washington officials avoid interfering in court cases at this level, as it is seen as becoming involved in what is considered a private dispute between an employee and their boss.
According to the New York Times, in their friend-of-the-court brief, the Justice Department wrote, “the sole question here is whether, as a matter of law, Title VII reaches seual orientation discrimination. It does not.”
The decision is a departure from policies of the previous administration. The Obama administration adopted protections for some LGBT workers under recommendations of the Equal Employment Opportunity Commission. That same organization has also issued a brief for the case a month prior to the actions of the Justice Department. The EEOC’s brief was in line with their recommendation, saying that sexual orientation should be considered as included in federal civil rights laws.
Understandably, the decision has angered activists. James Esseks, an attorney with the ACLU, spoke to Politico, saying, “On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights. The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination.”
While the decision is controversial, the truth is that there is no definitive court ruling as to whether the 1964 Civil Rights Act can be applied to sexual orientation; the Supreme court has never heard the issue.
The number of federal civil lawsuits that go to trial has been steadily declining for decades — down from 11.5% in 1962 to 1% today. However, with their controversial moves, the Department of Justice may be gearing up for a larger court battle over LGBT civil rights.
Despite these obstacles, Esseks is optimistic, saying, “Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives.”