The Trump administration last week urged the U.S. Supreme Court to allow discrimination against LGBT Americans. This is an abhorrent step backwards.
The administration, in an amicus brief filed Friday, essentially argued that employers should be able to fire LGBTQ Americans because they are not covered by the Civil Rights Act of 1964, which outlaws workplace discrimination on the basis of sex, race, color, religion or national origin. The Department of Justice argues that sex does not include sexual orientation.
Earlier this month, the administration submitted a brief in another case asking the court to rule that the act does not protect transgender people from employer discrimination.
These briefs, filed by the U.S. Solicitor General Noel Francisco, who works for the Department of Justice, send a chilling message that the Trump administration will not seek to protect millions of Americans from losing their jobs because of their gender identity or orientation. This furthers a dangerous othering of LGBTQ Americans.
The Supreme Court is scheduled to hear three cases involving Title VII of the Civil Rights Act in October. One involves a transgender employee of a funeral home. In the other two cases, gay men were fired from their jobs.
In the latter two cases, last week’s brief argues that an employer who discriminates against employees in same-sex relationships does not violate the act as long as it treats men in same-sex relationships the same as women in same-sex relationships. In another example, it argued that “a gay man fired for being too effeminate has just as strong a claim as a straight man fired for that reason.”
Such logic turns the intent of the Civil Rights Act — to protect all Americans from discrimination — on its head.
The administration uses the fact there have been numerous attempts by Congress to add “sexual orientation” to the 1964 law as evidence that law does not currently prohibit discrimination on this basis.
We hope the court rejects the administration’s arguments. But, as the administration shows its hostility toward efforts to protect LGBTQ Americans from discrimination, it is increasingly important that Congress act to clarify that this discriminatory treatment is unlawful.
The Equality Act, which would incorporate sexual orientation and gender identity into existing civil rights protections, is pending in Congress. Maine’s entire congressional delegation supports the bill. Sen. Susan Collins is the Equality Act’s only Republican sponsor in the U.S. Senate.
The act has passed the House but it faces dim prospects in the Republican-controlled Senate.
Many states have acted on their own. More than half of states, including Maine, have incorporated sexual orientation and gender identity into some or all of their anti-discrimination laws, providing protections that the federal government and many other states do not.
Maine lawmakers added those protections by amending the Maine Human Rights Act in 2005. Fifty-five percent of voters rejected an attempted people’s veto of the bill, sending a message of support to LGBTQ Mainers.
But, for those living in states without such protections, discrimination remains a threat. That threat was highlighted and heightened by the Trump administration’s recent legal filings, which remind us that work remains to be done to ensure all Americans are treated equally.