The Trump administration filed a brief with the Supreme Court on Friday arguing that employers should be allowed to discriminate against, or even fire, their lesbian, gay and bisexual employees simply due to their sexual orientation.
The Justice Department intervened in one of two matters before the high court set to address LGBTQ employment discrimination during the court's next term. At issue is Title VII of the Civil Rights Act of 1964, which makes it a crime for employers "to fail or refuse to hire" or otherwise discriminate against a prospective or actual employee "because of such individual's... sex."
While the Supreme Court has held that discrimination on the basis of sex encompasses actions taken or beliefs held by an employer that subject an employee to gender stereotypes, the court has never ruled on whether sex-based discrimination necessarily extends to sexual orientation.
In fact, appellate courts have traditionally held that sexual orientation is not a protected characteristic under Title VII, with one noted exception. In 2017, a federal appellate court reversed a prior holding to declare that discrimination against one's sexual orientation does violate the law.
With its brief on Friday, the Department of Justice is trying to impel the Supreme Court to issue a precedent-setting ruling that would give the green light to employers nationwide who are not encumbered by state anti-discrimination ordinances.
