Donald Trump may be bashing his attorney general left and right, but that hasn’t deterred Jeff Sessions from deploying his boss’s legal agenda. His latest rollback, on what now looks like a banner day for the Trump administration and LGBT rights, was the Department of Justice’s new position in court that federal civil-rights law doesn’t protect employees targeted by anti-gay bias in the workplace.
Title VII of the Civil Rights Act of 1964 is one of the crowning achievements of the civil-rights movement, and by its very terms forbids employers from discriminating against anyone on the basis of race, color, religion, sex, or national origin. Since the law’s enactment, courts have understood the word “sex” to mean gender and not “sexual orientation,” and thus it became standard practice for judges to routinely dismiss cases whenever a worker alleged, say, that his employer denied him a promotion simply because the employer didn’t like that the worker hung a picture of his bearded spouse in his cubicle.
In recent years, the Equal Employment Opportunity Commission, which oversees enforcement of Title VII, began to see things differently. And relying on Supreme Court precedent that read existing law as forbidding things such as same-sex harassment and gender stereotyping, the agency started to push the argument that Title VII, indeed, may be read to also forbid taking adverse employment actions against gays and lesbians.
Advocates ran with this position, arguing for themselves and their aggrieved clients that federal employment law, if read the way EEOC and Justice Antonin Scalia read the law — that is, textually — makes it illegal to fire the gay worker with the framed picture of his bearded spouse. After all, a woman with the same picture frame and bearded husband wouldn’t be fired. That’s classic discrimination on the basis of sex: The sex of the worker’s spouse is the boss’s guiding light. And isn’t the expectation that a man should only marry a woman de facto sex stereotyping?
In a landmark April ruling, an appeals court bucked precedent and ruled for the first time that the EEOC’s position is the correct one. And other courts, including the Manhattan-based federal appeals court, are starting to give a fresh look at an issue they once thought was open and shut. It’s in that New York case that Trump’s Justice Department filed a brief opposing the view that Title VII protects gay workers. Its view is a familiar one: It should be up to Congress to fix the law if it wants to prohibit anti-gay discrimination. As written, the law just doesn’t do that.
But for Sessions and his lawyers to prevail in this particular battle, they will be forced to contend with something their hero Scalia recognized for a unanimous Supreme Court in 1998: that what matters in the end is the law’s text, not what Congress may have in mind at a specific moment in history. In his view, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
In other words, Sessions could well take a beating here as well. And the Supreme Court, which is the final arbiter of many of our culture wars, is already on deck to deal the painful blow sooner rather than later.