The Justice Department deliberately inserted itself into a federal court case Wednesday evening to argue against gay rights — a move that puts the DOJ at odds with another federal agency involved in the case.
The lawsuit in question was filed in 2010 by now-deceased Donald Zarda, a skydiving teacher who alleged his former employer, Altitude Express, fired him for being gay. Zarda brought his claim under Title VII, a federal law under the Civil Rights Act of 1964 that prohibits employers from discriminating against employees based on race, color, sex, national origin, and religion.
Lawyers from the Justice Department, which was directly not involved in the case, filed an amicus brief to the U.S. Court of Appeals for the Second Circuit, Buzzfeed reported. In its brief, the Justice Department argued that Title VII does not cover sexual orientation and thus, doesn’t protect LGBTQ+ people in the workplace.
“As the courts have long held, discrimination based on sexual orientation does not fall within Title VII’s prohibition on sex discrimination because it does not involve ‘disparate treatment of men and women,’” the Justice Department wrote.
The Justice Department did not immediately respond to VICE News request for comment.
By asserting that Title VII doesn’t cover discrimination on the basis of sexual orientation in the workplace, the Justice Department is also actively contradicting the Equal Employment Opportunity Commission — the federal agency created under Title VII to enforce federal laws against discrimination, including sexual orientation, according to David Cruz, an expert in constitutional law and a professor at the University of Southern California’s Gould School of Law.
Such a filing would normally be persuasive to courts, though Cruz said Trump’s reputation could dilute its effectiveness.
“Ordinarily, one might think that a filing on behalf of the United States might be viewed more seriously due to the moral authority of the federal government. Here, however, it’s unclear whether or not that will be the case,” Cruz said. “This administration is unprecedented in its efforts to curtail rights and the scandals it’s been confronting from the outset. It is not clear that the U.S. government can lay claim to much moral authority these days.”
Adam Winkler, a specialist in constitutional law and a professor at the UCLA School of Law, told VICE News that the amicus brief was an abrupt reversal from the Obama administration, which actively worked to protect the LGBTQ+ community.
“What’s striking is that it is so different than the Obama administration,” Winkler said. “It also shows that this administration is hostile to LGBT rights despite what we were heard on the campaign trail.”
Trump had initially championed the LGBTQ+ community and promised in a speech at the Republican National Convention in June 2016 that, “As president, I will do everything in my power to protect LGBTQ citizens from the violence and oppression of a hateful foreign ideology.”
The president has since changed his position. On the same day the DOJ filed its brief, Trump declared in a series of tweets that transgender individuals would no longer be permitted to serve in the United States military because they pose a “burden” to the troops.
“Today [Wednesday] was an absolutely horrible day for LGBT rights,” Winkler added.