The American Civil Liberties Union
(ACLU) has criticized the position of the Trump administration in a
Supreme Court brief, saying that its filing has been “reverse
engineered” to conclude that it's lawful to fire LGBT workers.
The 34-page brief submitted Friday was
signed by U.S. Solicitor General Noel Francisco.
Francisco argues in the filing that
Title VII's protections based on sex do not extend to people who
identify as lesbian, gay, bisexual or transgender because Congress in
1964 didn't intend to ban such discrimination and lawmakers have
failed to enact legislation such as the Equality Act which would
explicitly do so.
“The question here is not whether
Title VII should forbid employment discrimination because of sexual
orientation, but whether it already does,” the brief states. “The
statute’s plain text makes clear that it does not; discrimination
because of ‘sex’ forbids treating members of one sex worse than
similarly situated members of the other – and discrimination on the
basis of sexual orientation, standing alone, does not result in such
“Congress has amended other statutes
expressly to cover sexual-orientation discrimination, and it remains
free to do the same with Title VII. But until it does, this Court
should enforce the statute as it is written.”
Nadler calls for passage of Equality Act in response to Trump's plan
to “gut” LGBT order.)
The Supreme Court will hear arguments
in October in two cases involving workers who lost their jobs because
of their sexual orientation.
Criticizing the government's position
is Ria Tabacco Mar, senior staff attorney for the ACLU, who said that
the administration's brief “defies logic and common sense.”
“They admit it is unlawful to fire
gay men or lesbians, but claim it is perfectly fine to fire gay men
and lesbians,” Mar said. “And they concede that employers may not
penalize workers based on ‘gender norms,’ yet assert that
discriminating based on moral beliefs about sexual or marital
relationships has ‘nothing to do with’ gender norms.”
“It is simply reverse engineered to
reach the result the Trump administration wants: An America where it
is perfectly lawful to fire workers because they are lesbian, gay, or
bisexual or transgender,” Mar added.
In a Supreme Court brief filed last
week, the administration held a similar position in a case involving
an employee who was fired because of her gender identity.
Supreme Court brief, Trump admin argues it's OK to fire transgender