- The Washington Times - Sunday, August 13, 2017

When the Trump Justice Department last month asserted that civil rights laws don’t protect against discrimination based on sexual orientation, it clashed with another part of the administration — the Equal Employment Opportunity Commission — which previously claimed that the laws did apply.

Federal appeals judges are also at odds. A Chicago-based court ruled that Title VII of the Civil Rights Act of 1964 does cover sexual orientation, while an Atlanta-based court ruled that it was never envisioned as a protected class under the law.

The disagreements make it much more likely that the case will end up at the highest levels.

“I would think it’s a dead certainty to make it to the Supreme Court,” said Richard Epstein, a law professor at New York University. “Conflicts of interest generally get to the Supreme Court if they’re big.”

If so, it would mark the latest in a series of gay rights issues to reach a high court that has been increasingly friendly to the concerns. Justices have established a nationwide right to marry a person of one’s own sex and ordered states to change everything down to birth certificates to conform with that ruling.

They also have agreed to hear a case next term about whether Christian tradesmen refusing to participate in same-sex marriage ceremonies are violating anti-discrimination laws.

But the job discrimination cases could push into still new areas.

Title VII, which outlaws discrimination against an employee based on race, sex, religion or national origin, does not mention sexual orientation or practice.

In April, the 7th U.S. Circuit Court of Appeals ruled that even without explicit language in the law, it must be read to include sexual orientation, saying it is essentially the same as sex discrimination.

“It is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” Chief Judge Diane Wood wrote.

Judge Richard Posner, in a concurring opinion, acknowledged that the court was in effect rewriting the law — and should be proud of that, since it was done in service of defending a sexual minority.

“We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. We are taking advantage of what the last half-century has taught,” he wrote.

A three-judge panel of the Atlanta-based 11th Circuit, though, ruled in March that its own long-standing precedents preclude sexual orientation as a basis for Title VII claims and said until the Supreme Court decides otherwise, they are bound.

Katherine Franke, a law professor at Columbia University, said there is little legislative history or guidance from Congress on how to interpret the word “sex” in the Civil Rights Act of 1964, so the law has been evolving.

“What we are doing now is asking these hard questions once again about what ‘sex’ means and ‘sex discrimination’ means,” said Ms. Franke. “The statute has always been kind of a living document.”

Mr. Epstein said that if the matter reaches the Supreme Court, Justice Anthony M. Kennedy will likely be the tie breaking vote, setting the law for the foreseeable future.

“Where you end up in court is where you end up in life for the next generation,” he said.

Adding to the drama is a split within the executive branch.

The Equal Employment Opportunity Commission filed briefs in a case before the 2nd U.S. Circuit supporting a gay man who was claiming sexual orientation discrimination. It filed amicus briefs in both the 7th and 11th Circuit cases but was successful in only one of them.

The Trump administration’s Justice Department, though, disagrees with the EEOC’s position.

Devin O’Malley, a spokesman for the Justice Department, said the department’s position, contrary to the EEOC, is in line with 10 circuit courts and “reaffirms the department’s fundamental belief that the courts cannot expand the law beyond what Congress has provided,” said Mr. O’Malley.

The EEOC declined to comment.

Josh Blackman, a professor at South Texas College of Law, said it’s rare but not unprecedented for the Justice Department and the EEOC to take opposite positions.

Even more noteworthy, though, is the department’s reversal. It supported the sexual orientation reading of Title VII under the Obama administration, but under Mr. Trump has come to a different conclusion.

“The Supreme Court has been somewhat critical when the government switches sides following an election. There is nothing wrong with it, but it is significant when it happens,” Mr. Blackman said.

Because the EEOC is an independent agency with litigation authority, its position doesn’t have to conform with the Justice Department.

“Executive branch agencies with different positions often work them out informally so that the executive branch can take a consistent position,” said Nina Mendelson, a law professor at the University of Michigan. “But Congress created the EEOC as an independent agency and supplied it with independent litigating authority, so the Department of Justice likely would have a difficult time getting the EEOC to change its position in the circuit court.”

She said it’s difficult to predict which brief the circuit court would give greater weight.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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