Donald Trump’s move to ban military service by transgender people was big news yesterday, but action by the Justice Department may be more far-reaching. From BuzzFeed:


The US Justice Department on Wednesday argued in a major federal lawsuit that a 1964 civil rights law doesn’t protect gay workers from discrimination, thereby diverging from a separate, autonomous federal agency that had supported the gay plaintiff’s case.

The Justice Department intervened in a private employment case, which is unusual. And it takes a position contrary to what the federal Equal Employment Opportunity Commission has held — you can’t discriminate in employment against someone on account of their sexual orientation. The theory is that gay discrimination is based on sex stereotyping and thus runs afoul of the law’s protection against sexual discrimination.

The case is now before a federal appeals court.


If the Justice Department wins, it could be monumental. If the law doesn’t protect gay people from employment discrimination, does it protect them from housing discrimination or discrimination in publicly offered services? All this would seem to run counter to the landmark ruling that brought marriage equality, but that was a split decision and enemies of equal rights for gay people haven’t given up trying to upend that and all other protections for gay people.

In Arkansas, discrimination against gay people is a matter of law. State law provides no protection on account of sexual orientation or gender identity and the law effectively provides explicit protection for discrimination on these grounds in the name of “religion.”


The filing came the same day as Trump’s decision on transgender people in the military.

“On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights,” said a statement from James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project. “The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination.”

“Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives,” he said.

More on the case from Think Progress. Court decisions have been mixed on employment protections for gay people, though, interestingly enough, much stronger in favor of transgender people.