LGBT issues have been all over the news this week. On Wednesday, President Trump announced a ban on transgender Americans serving in the military. That evening, the Department of Justice made another significant move in the fight over LGBT rights, albeit with less flash than a tweet storm: It filed an amicus brief in a major case, Zarda v. Altitude Express, arguing that it’s not illegal to fire an employee based on his or her sexual orientation under federal law.
LGBT advocates were quick to decry the DOJ’s position as bigotry. But there’s a deeper context here: The brief was a throw-down in nuanced fight about the nature of the administrative state. During the Obama years, federal agencies slowly began expanding their interpretation of sex discrimination, which is prohibited by a number of civil-rights laws. The Equal Opportunity Employment Commission, the independent agency focused on workplace discrimination, arguably pushed the definition of sex discrimination further than any other regulatory body. In 2015, the EEOC ruled that Title VII, the civil-rights statute that protects workers, covers bias based on sexual orientation; it took a similar position in Zarda. Critics argued that this interpretation reads something into the law that isn’t there and accused the Obama administration of enforcing its political agenda through executive fiat. In effect, that’s exactly what Trump’s DOJ argued in its brief.
While this case will ultimately be decided by the courts, it’s a sign of conflict ahead in the long-brewing battle over LGBT rights and the meaning of sex discrimination. It also shows the limits of executive action in contested areas of law. The Obama administration may have believed gay people should be protected by federal civil-rights statutes, but it may prove challenging to make that interpretation stick now that a new party controls Washington. Read more via the Atlantic