A few weeks ago, President Trump and Attorney General Jeff Sessions made clear where they stand when it comes to the rights and equal dignity of LGBTQ Americans.
In what can only be described as an infamous day, Trump began July 26 by declaring that transgender members of our Armed Forces and veterans are a “disruption,” no matter that transgender Americans have served our Armed Forces with more dignity, honor, and integrity than Trump ever will.
Not wanting to be left behind, Sessions closed out the day by filing an unsolicited and outrageous brief arguing that the Civil Rights Act does not protect us from discrimination on the basis of sexual orientation (a form of sex discrimination). This action ignores the fact that the Equal Employment Opportunity Commission had already weighed in arguing to the contrary, and that no one solicited the Justice Department’s views. So, on July 26, the current administration went out of its way to harm LGBTQ people, just like it has tried to do with so many other minorities.
Still, there is cause for hope. While Trump and Sessions may be hellbent on turning back the clock to the days where racism, misogyny, homophobia, and transphobia were acceptable, the LGBTQ community, its advocates, and its allies will not cede one inch of the progress we have so doggedly achieved through decades of struggle. Every discriminatory action, nomination or pronouncement by this administration will be met with a swift and resounding response. And when it comes to discriminatory laws or policies, Trump and Sessions better be sure that we mean it when we say, “We will see you in court.”
Should it be enacted, Trump’s purported ban of transgender people from our military is not only incongruent with American values, it is also unconstitutional. Throughout the past few decades, courts have come to realize that governmental discrimination based on transgender status violates our constitutional guarantee to equal protection and is subject to the highest levels of scrutiny. Just ask Juliet Evancho, Elissa Ridenour and A.S., three transgender students that successfully put an end to their school’s discriminatory treatment in lawsuit brought by Lambda Legal.
If the time comes when Trump enforces a ban on transgender military service, Lambda Legal, and our sister organization OutServe-SLDN, will take immediate legal action. We are confident the courts will put a swift end to such a ban, just as they did with so many iterations of his Muslim ban.
Similarly, the so-called Department of Justice’s arguments against protections for LGBTQ people under the Civil Rights Act will also be rejected by the courts. Lambda Legal has been a leader in ensuring that courts properly interpret the Civil Rights Act’s prohibition on sex discrimination to cover discrimination on the basis of sexual orientation and gender identity, filing amicus briefs and representing LGBTQ persons facing employment discrimination. This position was later adopted by the EEOC in 2015 and 2012, respectively.
As a result, a multitude of district courts across the country have held that sexual orientation discrimination is a form of sex discrimination. The conclusion was bolstered in April 2017 when the Seventh Circuit Court of Appeals issued its historic decision in Hively v. Ivy Tech Community College, a case argued by Lambda Legal. The full Second Circuit Court of Appeals is now considering whether to join these other courts, and Lambda Legal is getting ready to file a petition with the United States Supreme Court asking them to resolve this very question.
Sessions and his political appointees want to stop LGBTQ people from being protected from discrimination, but we are confident the courts will reject their efforts. Not only are the arguments espoused by the Trump administration legally dubious, they seem to have been authored by protagonists from the “Mad Men” era.
Wednesday, July 26, 2017 was a difficult day. We learned that our federal government has abandoned us, and that Trump and his administration are more interested in scoring cheap political points than in protecting the most vulnerable among us. But even if Trump, Sessions and the administration have turned a blind eye on the equal rights and dignity of LGBTQ people, we are confident that we will prevail.
Lambda Legal will not rest until we have achieved the full recognition of the civil rights of LGBTQ people and everyone living with HIV. We are confident that if the courts do their job, those days are not far ahead.
Omar Gonzalez-Pagan is a staff attorney at Lambda Legal. To learn more about Lambda Legal, visit lambdalegal.org or call the Legal Help Desk 866-542-8336.
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