Trump administration signals loss of ground for LGBT rights

After 49 people were massacred at a gay nightclub in Orlando in June 2016, presidential candidate Donald Trump promised to be a “real friend” to the gay community.

Decrying the “assault” on people’s ability to “love who they want to and express their identity,” the Republican front-runner declared, “I will fight for you.”

Just over 13 months later, Trump’s Justice Department, in a case between private parties that involved no government agency, told a federal appeals court on Tuesday that discrimination based on sexual orientation is legal under federal law. The next day, the president tweeted his intention to ban military service by transgender Americans, including the thousands already serving.

On the sexual orientation issue — which is likely headed for the Supreme Court — the Justice Department’s position does not differ greatly from its stance under President Barack Obama in 2014, when the department sought to dismiss a suit by a fired gay employee of the Library of Congress.

But the Obama administration backed away from that position in a later case, and an Obama-appointed majority of the Equal Employment Opportunity Commission voted in 2015 to define antigay discrimination as illegal sex discrimination. Trump’s lawyers this week repudiated that position, saying the EEOC “is not speaking for the United States.”

“This is pretty nakedly a broken promise,” Matthew Coles, a constitutional law professor at UC Hastings in San Francisco and former deputy national legal director of the American Civil Liberties Union, said of Trump’s latest actions. “There’s no way you can interpret either one of these moves as protecting the LGBT community, which he said he was going to do.”

On the other hand, said Stanford Law Professor Jane Schacter, this week’s developments shouldn’t come as a surprise.

Trump’s campaign statements “were vague rhetorical gestures, not specific commitments,” Schacter said. More revealing, she said, was the 2016 Republican platform, which denounced the Supreme Court’s 2015 ruling legalizing same-sex marriage and condemned “redefining sex discrimination to include sexual orientation,” the issue in the current federal court case.

Schacter also cited Trump’s selection of Indiana Gov. Mike Pence, an outspoken opponent of gay rights, as his running mate.

The White House did not respond to a request for comment.

The Justice Department’s filing this week before the Second U.S. Circuit Court of Appeals in New York was unusual, since neither side in the discrimination suit had asked the government to participate. But the dispute involves an issue that has grown more pressing since the 2015 marriage ruling, which, as gay-rights advocates observed, didn’t protect same-sex newlyweds from being fired from their jobs in many states. The issue almost certainly will be resolved by the courts rather than Congress.

The 1964 Civil Rights Act prohibited employment discrimination for reasons that included race and sex. The law does not expressly cover sexual orientation — unlike laws in about half the states, including California — but in recent years, some federal courts have interpreted the ban on sex-related bias to cover gays and lesbians as well.

Most prominently, the Seventh U.S. Circuit Court of Appeals in Chicago ruled 8-3 in April — with a majority that included five Republican appointees — that a fired lesbian law professor could sue her school under the federal law. The court likened her case to sex discrimination, since she wouldn’t have been fired if she had been a man, rather than a woman, whose partner was female. The majority also cited a 1989 Supreme Court ruling that barred employment bias based on gender stereotypes.

But the Justice Department, in its filing Tuesday in the New York case, said the sex-bias law required only that men and women be treated equally and had nothing to do with sexual orientation.

“An employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently because of their sex,” the department’s lawyers argued. “Gay men and women are treated the same, and straight men and women are treated the same.”

By the same logic as the Seventh Circuit ruling, the Justice Department said, bathrooms limited to one sex would be discriminatory, “because a man would never be prohibited from using the women’s room if he were a woman” and vice versa.

Coles, of UC Hastings, said the department was relying on outdated arguments that “any policy is legal unless it discriminates against men or women as a group.”

The filing also drew criticism from San Francisco City Attorney Dennis Herrera, who called it part of Trump’s “discriminatory agenda.” Mat Staver, chairman of Liberty Counsel, a Christian conservative legal organization, praised the Justice Department for interpreting the law as intended.

The Supreme Court has yet to address the issue and generally defers to appellate courts until their opinions conflict, as they did on same-sex marriage. The Seventh Circuit ruling in April was the first by an appeals court to extend the civil rights law to sexual orientation, but the case went no further because the employer did not appeal.

But there are hints of a similar ruling from the Second Circuit court in New York that could propel the case upward for a nationwide resolution. A three-judge panel, bound by the court’s earlier decisions, rejected the discrimination claim in April, but a majority of the court’s 11 judges then ordered a rehearing before the full court, which has authority to reach a new conclusion.

And in March, the court’s chief judge, Robert Katzmann, wrote in another case that he now believes discrimination based on sexual orientation is “inherently rooted in gender stereotypes” and appears to fit the definition of sex discrimination.

The hearing is scheduled Sept. 26.