Thirty-two Republicans, lead by Ken
Mehlman, have filed an amicus brief with the Supreme Court
calling for it to find that Title VII of the Civil Rights Act of
1964, which prohibits employment discrimination based on sex, bans
workplace discrimination against people who identify as lesbian, gay,
bisexual and transgender.
The Supreme Court has agreed to
consider the issue in a trio of cases to be heard in October. The
cases involve two male plaintiffs who were fired because they are gay
and one plaintiff who was fired soon after she disclosed to her
employer that she is a transgender woman. Two appeals courts have
sided with the plaintiffs, but one has disagreed.
Ken Mehlman, the former Republican
National Committee (RNC) chair who came out as gay in 2010, organized
the brief.
In the brief, written by the DC-based
law firm Robbins, Russell, Englert, Orseck, Untereiner & Sauber
LLP, the Republicans argue that Title VII's protections against sex
discrimination extend to LGBT status, even if not explicitly stated
in the law.
“When Title VII was enacted, Congress
and the American public would not have expected it to protect sexual
orientation and transgender status because those aspects of identity
were not the subjects of significant political debate at the time,”
the brief states. “Perhaps so, but it is not relevant. As this
Court has repeatedly recognized, in Title VII cases as well as cases
in other areas of the law, statutes often apply more broadly than
their drafters anticipated, and extrinsic evidence of statutory
‘intent’ is irrelevant when the statute’s words are clear.”
“In the cases on review, the ultimate
question is both simple and no different from the questions in
Meritor, Oncale, or any other case applying the plain
language of Title VII in the context of sex discrimination: Would the
plaintiffs below have been treated differently by their employers
were they of a different sex? The answer, in each case, is ‘yes.'”
the brief states elsewhere.
Notable Republicans who signed the
brief include former presidential candidate Fred Karger and former
Republican nominee for California governor Meg Whitman. The brief
does not include any current members of Congress.
In coming out, Mehlman said that he
wanted to work on legalizing marriage for gay and lesbian couples. He
was criticized for working against the interests of the LGBT
community, particularly as manager of President George W. Bush's 2004
re-election campaign. That year, eleven states approved marriage bans
with the backing of the Republican Party.
(Related: With
apology tour over, Ken Mehlman takes a bow.)