The Department of Justice has filed an amicus brief arguing that Title VII of the Civil Rights Act, which bans discrimination on the basis of race, religion national origin and gender, does not extend to sexual orientation. Or put differently: Discriminating against women bad! Discriminating against lesbian and bisexual women OK!
But what is an amicus brief and what does this mean for you (and me) immediately?
An amicus brief is filed by a third party who is not involved in the case, and meant to clarify or expound on a point of law. Lobby groups often file amicus briefs hoping to persuade the court to see the situation in a different light. Amicus briefs are most often filed when a case has potentially wide-ranging social or economic impact, and are a way for third parties to weigh in on these issues, and offer their expertise.
That means that while the DOJ is offering an opinion on how Title VII should be interpreted, the brief doesn’t have a legal impact on LGBT people – at least not yet. Because while their brief is not an official policy statement per se, it does tell us quite a bit about how Title VII protections will be understood by Jeff Sessions’ DOJ.
In this case, the DOJ has told the Supreme Court that it doesn’t believe that Donald Zarda, whose estate is suing his former employer Altitude Express for wrongful dismissal, is not entitled to protection under Title VII; that, in fact, sexual orientation is a reasonable grounds for firing employees and that by default, sexual (and I would expect gender) minorities should not be a protected class.
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The Equal Employment Opportunity Commission (EEOC) has argued in favour of Title VII being interpreted to ban discrimination against LGBQ people, both previously and in this specific case. The DOJ amicus brief names them, saying that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” The implication being that the DOJ’s position may be due some deference.
It’s the courts though that will decide how this question – and they have been split on the issue for years. Earlier this year a Chicago court ruled that Title VII does indeed prohibit discrimination against LGBQ employees. However, just one month before that the 11th Circuit ruled that Title VII did not extend to LGBQ people. Precedent for the Zarda case is therefore unclear, and amicus briefs like the one filed by the DOJ may have a real impact on the court’s decision. That many states don’t ban anti-LGBTQ discrimination and even allow a gay and trans “panic” defense for first degree murder may also sway the court against the Zarda estate.
The immediate impact of the DOJ filing this amicus brief isn’t a legal one. To be sure, no matter the outcome of the Zarda case, reference will be made to the brief in future discrimination suits and in writing discrimination policies. No, the immediate impact is social, and of course personal. It’s hard not to read the DOJ’s brief, coming on the same day as President Trump’s declaration that transgender people will be banned from military service, as something chilling.
And for all that your policies and practices at work won’t change today or tomorrow as a result, how safe your LGBTQ colleagues feel has changed.