Sunday, October 08, 2017


That is the sound of the U.S. Department of Justice getting it’s hand slapped.

They were told to butt out by the U.S. Court of Appeals for the 2nd Circuit in a Title VII discrimination case where the plaintiff says he was discriminated against because he was gay.
Department of Wackadoodle
The DOJ’s new anti-gay legal posture just got shut down in federal court.
By Mark Joseph Stern
September 26, 2017

NEW YORK—The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.

The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.

It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination does protect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.
Yup, the new memorandums by Attorney General Jeff Sessions are not based on law but rather religious prejudice and bigotry. You see Attorney General Jeff Sessions appointment was by Trump but the EEOC is a bipartisan Commission comprised of five presidentially appointed members but they are appointed for a fixed term and I believe that the Democrats are still in the majority.

The bases for the law suit are…
In 1989’s Price Waterhouse v. Hopkins, the Supreme Court ruled that sex stereotyping—punishing a worker for her failure to conform to gender norms—is a kind of sex discrimination. At first, courts only applied sex stereotyping to masculine women and feminine men. But as the 7th U.S. Circuit Court of Appeals explained in March, gay people are “the ultimate case of failure to conform” to sex stereotypes, since men and women are typically expected to date only individuals of the opposite sex.
So this is an important case for trans people because a victory in court now will reinforce our claim that Title VII covers us also.

So keep your fingers crossed that they win.

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