The Fenway Institute Denounces Justice Department Attack On Sexual Orientation Nondiscrimination In Employment

The Trump-Pence Administration and Attorney General Jeff Sessions continued their political attacks on lesbian, gay, bisexual and transgender people last night by filing a brief in a case before the U.S. Second District Court of Appeals that opposes a growing body of jurisprudence that interprets some forms of anti-gay discrimination to constitute sex stereotyping. The move is the latest in a series of anti-LGBT statements and policy initiatives by the Trump-Pence Administration and the Department of Justice.

“The right to equal treatment in employment is a basic human right,” said Sean Cahill, PhD, Director of Health Policy Research at The Fenway Institute. “It is a core social determinant of health. Individuals must be able to earn a living in order to pay for shelter, food, and other basic human needs. Attorney General Sessions is rejecting a growing body of jurisprudence that has found that anti-gay discrimination can constitute a form of sex stereotyping.”

Recent federal court rulings, including Hively v. Ivy Community College and Price Waterhouse v. Hopkins as well as a ruling by the Equal Employment Opportunity Commission have determined that discrimination based on sexual orientation can constitute a form of sex stereotyping prohibited by Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. This is because sex stereotyping often involves traditional gender roles related to sexual orientation, such as the belief that men should only date and marry women.

Attorney General Session’s brief against interpreting sex discrimination to include some forms of anti-gay discrimination fulfills a promise made in the 2016 Republican Party Platform to refuse to interpret Title IX, which outlaws sex discrimination, as prohibiting anti-LGBT discrimination. (The jurisprudence interpreting anti-transgender discrimination to constitute sex discrimination is even more robust than that addressing anti-gay discrimination.). The Republican Party Platform said that such interpretations of sex discrimination laws are being used “to impose a social and cultural revolution upon the American people by wrongly redefining sex discrimination to include sexual orientation or other categories…They are determined to reshape our schools—and our entire society—to fit the mold of an ideology alien to America’s history and traditions. Their edict to the states concerning restrooms, locker rooms, and other facilities is at once illegal, dangerous, and ignores privacy issues.”

In May 2016, the U.S. Department of Health and Human Services issued a rule implementing Section 1557 of the Affordable Care Act which prohibits discrimination based on gender identity in health care facilities and programs receiving federal funding. The Section 1557 rule is less explicit in regards to sexual orientation discrimination, but it does state that discrimination based on sex stereotyping is prohibited in health care programs and facilities receiving federal funding. The U.S. Department of Justice signaled its intent to reverse these protections in May. The DOJ has also opposed a regulation protecting transgender students in schools, and yesterday President Trump tweeted against transgender people serving in the U.S. military.

A 2015 poll conducted for the Human Rights Campaign found that nearly two thirds of LGBT Americans have experienced discrimination, and that an overwhelming majority of likely voters in the U.S. (69%-27%) support a law prohibiting discrimination on the basis of sexual orientation and gender identity.

“The Trump-Pence Administration has launched an attack on one of the most basic human rights—the right of gay, lesbian and bisexual people to earn a living and achieve the American dream,” said Cahill. “This undermines basic principles of fairness and equal opportunity for all. The vast majority of Americans reject this extreme, mean-spirited action by the Trump-Pence Administration and the U.S. Department of Justice.”

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