Justice Department lawyers told a federal appeals court on Wednesday that only Congress can decide to make sexual orientation and gender identity protected classes under federal civil rights laws, reversing the Obama administration’s position that courts can reinterpret previous laws to include these new social categories.
The U.S. Court of Appeals for the Second Circuit has decided to rehear en banc the case Zarda v. Altitude Express, where a plaintiff claims that when Title VII of the Civil Rights Act of 1964 forbids employers from discriminating on the basis of sex, the word “sex” includes sexual orientation. (Parallel cases also argue that “sex” includes gender identity and transgender issues.)
In recent years, lawyers for liberal activist groups shifted from their perennial efforts to amend federal civil rights laws to declare sexual orientation and gender identity to be specially protected categories like race, arguing now that legislative changes are not needed, because current laws against sex discrimination already cover those newer social disputes. Under President Barack Obama and Attorneys General Eric Holder and Loretta Lynch, the U.S. Department of Justice (DOJ) adopted those positions over the past several years.
On July 26, the Trump-Sessions DOJ reversed course, arguing that the words of Title VII have the same dictionary meanings today that they had in 1964, and thus that homosexuality and transgenderism are not specially protected legal categories.