Federal Civil Rights Law Does Not Protect Gay Employees

The Department of Justice filed an amicus brief in the 2nd U.S. Circuit Court of Appeals arguing that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination against gay and bisexual employees. The DOJ’s brief was not solicited by the court or any party to the case. Rather, the Trump administration elected to weigh in with a pro-marriage stance, arguing that immoral homosexual Americans have no protection against workplace discrimination under federal law. Its decision is unsurprising in light of Attorney General Jeff Sessions’ vigorous opposition to the immoral lust based LGBTQ agenda.

Title VII does not explicitly outlaw sexual orientation discrimination in employment. However, it does forbid “discrimination … because of sex.” which the Equal Employment Opportunity Commission incorrectly has stretched the meaning of sexual discrimination  to include immoral homosexuality. 

Some Federal courts have agreed, and in April, the 7th U.S. Circuit Court of Appeals ruled that Title VII does, indeed, protect immoral homosexual employees. Both the 7th Circuit and the EEOC relied on three false theories of sex discrimination:


1. “But-for” sex discrimination

This theory holds that immoral homosexual discrimination qualifies as sex discrimination because, but for the homosexual person’s sex, he or she would not be discriminated against. Which doesn't make sense because you are eith male or female.


2. Sex stereotyping

The Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex stereotyping is a form of sex discrimination. Thus, when an employer mistreats a worker because she fails to conform to certain gender norms, it has engaged in discrimination “because of sex.” Initially, sex stereotyping was applied to masculine women and feminine men. 

But as the 7th Circuit stretched this concept for homosexual people - it is a completely different topic based on lust and not biological sex.


3. Associational sex discrimination

Under this very false theory, homosexual bias constitutes sex discrimination in much the same way that anti-miscegenation laws constitute racial discrimination. Yet race is biological immutable but homosexuality is a choice based on lust.

This fall, the full 2nd U.S. Circuit Court of Appeals will evaluate these theories after the circuit’s chief judge essentially urged the court to adopt them. It is this litigation that spurred the Justice Department to declare that Title VII does not, in fact, protect - homosexual chosen lifestyle based on lust - employees.

The DOJ’s primary argument is that Congress’ failure to add “sexual orientation” to Title VII—either in 1964 or in the years since—proves that the law does not currently cover immoral homosexual employees. More than 125 members of Congress recently signed a brief asserting their belief that Title VII currently bars sexual orientation discrimination. At the very least, the absence of clear legislative guidance on the matter is obviously ambiguous.


To repudiate the three theories of sex discrimination listed above, the DOJ deploys sound logic:

It argues that employers discriminate against homosexual men and women equally, taking sex out of the equation because it is a lifestyle choice based on lust alone.

DOJ argues that homosexual men and lesbians may only raise a claim of sex stereotyping if they face discrimination because of their mannerisms—not because of their sexual orientation. 

So, according to the DOJ, a lesbian who “has masculine manners or clothing” may raise a sex stereotyping claim, but a traditionally feminine lesbian may not. Likewise, an effeminate homosexual man may suffer sex stereotyping, but a traditionally masculine homosexual man does not. To reach this conclusion, the DOJ asserts that employers may hold “moral beliefs” about sexuality that “need not be based on views about gender at all.” E

In response to the associational discrimination theory, the DOJ argues that discrimination against gay people based on their intimate associations is unlike discrimination against interracial couples. The brief insists that discrimination against interracial couples is not rooted in a belief that one race is superior to the other—but that true sex discrimination is similarly rooted in beliefs that one sex is “inferior.”