Feature image by Molly Adams
Jeff Sessions and Donald Trump are a true Republican love story for the ages, aren’t they? Sessions recusing himself from the investigation into Donald Trump’s ties to Russia during the 2016 presidential campaign, perjuring himself twice before Congress w/r/t his own contacts with Russia during his time with Trump’s campaign, Trump clomping around losing his mind to anyone who’ll listen about how Sessions’ recusal is a betrayal and he should be fired (which, in turn, would allow Trump to fire special counsel Robert Mueller). With so much stacked against them, you’ve gotta wonder if these two crazy kids’ relationship has what it takes to survive — but then you remember that even though The FBI and the FEC and every major newspaper in the country is closing in on the direct ways Trump’s team stole the White House, those two pals are still out here finding common ground in oppressing and persecuting LGBT people.
Here’s the deal with the case: It’s Zarda v. Altitude and it’s about a gay skydiving instructor (Zarda) who said he was fired by his New York-based company (Altitude) for being gay in 2010. Zarda died in a base-jumping accident a few years ago but his case lives on. His lawyers have been arguing that sexual orientation is covered under Title VII’s protections, which “prohibit employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.” The Equal Employment Opportunity Commission, which joined Zarda’s team after the case made its way up to the Second Circuit Court of Appeals, has been arguing that anti-gay discrimination is based on sex stereotyping and is therefore sex discrimination, which is covered under Title VII.
Courts haven’t definitively settled that Title VII includes protections for sexual orientation. Rulings in these cases have been all over the place; some courts have avoided this interpretation and then later appeals courts have upheld it, and vice versa. Sessions’ argument is that Title VII clearly doesn’t provide protections for sexual orientation, that it never has, and if Title VII is going to carry those protections the scope of the amendment should be reevaluated and rewritten by Congress.
To be fair, the Obama Administration was never fully on board with the EEOC’s legal argument in these cases, but Obama eventually stopped pushing back against it, and in April a lesbian in Indiana won her discrimination case in the Seventh Circuit Court of Appeals using the Title VII argument. It was a sweeping 8-3 victory that completely reversed course on the Seventh Circuit’s other same-sex discrimination rulings. At the time, Chief Judge Diane Wood wrote: “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results … such an effort cannot be reconciled with the straight-forward language of Title VII.”
It’s very out of the ordinary for the Justice Department to show up and argue in a case like this. If the Second Circuit takes Sessions’ advice and rules against Zarda, the circuit will have split, and it’s likely this case — or a case just like it — will soon make it away to the Supreme Court.
Yesterday was the kind of day LGBT people warned their friends and family about when begging them not to vote for Trump. No, he hasn’t come for marriage equality, but that’s only one of the many, many, many things the government gets to decide about gay and trans people’s lives. In six months, Trump has removed all pro-LGBTQ language from the White House website, removed questions about LGBT elders from The National Survey of Older Americans Act Participants, reversed Obama’s Title IX executive order that ensured trans students access to public facilities that match their gender identity, reversed another Obama-era executive order that prohibited federal contractors from working with companies that discriminate based on gender identity or sexual orientation, appointed a lawyer to defend North Carolina’s HB2 “bathroom bill,” kicked trans people out of the military on Twitter, and now this.
So while Twitter and the media at large can’t get enough of Trump and Sessions throwing their little fits about how the other one is doing them dirty, remember they could never hate each other as much as they hate us.