An attorney for the US Department of Justice stood before 13 federal judges in Manhattan on Tuesday to deliver the Trump administration’s hardline argument that a 1964 civil rights law doesn’t protect gay workers from discrimination — and in doing so, pitted himself against a top lawyer for another federal agency who was there to advocate on behalf of a gay worker.
“It’s a little awkward for us to have the federal government on both sides of this case,” said Judge Rosemary Pooler of the 2nd US Circuit Court of Appeals.
“Indeed, your honor,” conceded Jeremy Horowitz, counsel for the Equal Employment Opportunity Commission (EEOC), an independent agency that enforces civil rights law in workplaces.
The discord — and the awkwardness on display — stems from the Trump administration taking a turn away from the Obama administration’s LGBT-friendly trajectory. That has put lawyers under US Attorney General Jeff Sessions at direct odds with more autonomous corners of the federal bureaucracy.
The judges on Tuesday, in a hearing of the full 2nd Circuit, wanted to know if the two agencies had even consulted each other before filing opposing briefs.
“I don’t think it’s appropriate for me to speak to internal deliberations and processes,” Hashim Mooppan, a deputy assistant attorney general in the Justice Department’s Civil Division, told the judges.
“The EEOC had the authority to file the brief they filed,” he continued. “And the DOJ has authority to file the brief it filed.”
Mooppan spoke on behalf of the United States government as a whole, arguing Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, does not cover sexual orientation.
The argument rebuffs a skydiving instructor named Donald Zarda, who claimed in 2010 he was fired for being gay in violation of Title VII. But while the lawsuit started as a low-profile workplace dispute — and Zarda has since died in a base-jumping accident — the case has snowballed to have potential national impact.
“It’s a little awkward for us to have the federal government on both sides of this case,” said Judge Rosemary Pooler.
Neither federal agency is a party to the lawsuit, but it was unusual when the Justice Department chose to file a brief in July, since it doesn’t typically wade into private employment matters.
There is no federal law explicitly banning anti-LGBT discrimination in workplaces. In recent years, however, activists and the EEOC have convinced some courts to find a broader reading of Title VII to cover sexual orientation and gender identity. The Supreme Court has not weighed in on the question directly.
But now that Sessions is in charge of Trump’s Justice Department, he has tried to narrow the meaning of Title VII to exclude LGBT protections.
“There is a common-sense difference between sex discrimination and sexual orientation discrimination,” said Mooppan, who noted that Congress could have clarified the law in years past but didn’t.
The judges asked why the Justice Department didn’t take the same stance against gay rights in a similar case last year — before Trump’s inauguration.
“It was before my time at the department, your honor, so I honestly couldn’t tell you,” said Mooppan, who worked for the firm Jones Day and once served as a clerk for the conservative former Supreme Court justice Antonin Scalia.
Under Sessions, the Justice Department has attacked LGBT rights, reversing an Obama-era policy that protects transgender students after just a few weeks in office. This month, Sessions chose to file a brief at the Supreme Court in favor of a Christian baker who refused a wedding cake to a gay couple.
Sessions has also advanced an uncompromising stance that Title VII does not cover sexual orientation — and that it only applies if men and women are treated unequally.
That’s a shift in tack from the Obama administration, which had tried to skirt the question directly or stay neutral. In 2012, for example, the administration sought to dismiss a sexual orientation lawsuit based on Title VII by saying a plaintiff did “not provide what courts have held is required to show that sex stereotyping was the cause of his employer’s actions.” In 2016, the Obama administration arguably dialed back that opposition when it didn’t try to dismiss a similar lawsuit.
Among Zarda’s biggest boosters is the EEOC, where current commissioners were nominated by Obama. The EEOC has contended in federal court that Title VII bans anti-gay discrimination, saying it is based on sex stereotyping, and therefore discrimination on the basis of sex.
On Tuesday, EEOC lawyer Horowitz told the judges, “Sex stereotyping says that if you are a man attracted to a man, or a woman attracted to a woman, you’re not behaving the way those genders are supposed to behave.”
He argued gay people wouldn't be fired in anti-gay workplaces, but for the fact that they are attracted to — and associating with — someone of the same sex, which makes it sex discrimination.
But the Justice Department argued in its July brief that "the EEOC is not speaking for the United States."
The case on Tuesday was before the 2nd US Circuit Court of Appeals, where a panel of three judges in April decided against Zarda. The court agreed to rehear the case this week with its full panel of judges, known as an en banc hearing.
If Zarda’s argument were to prevail, it would set a new precedent in the 2nd Circuit by overturning two cases from the 2000s. Further, it would give momentum to his Title VII argument as a general matter, given that in April the 7th Circuit ruled in favor of a lesbian who made the same claim.