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Editor’s Note: Danny Cevallos is a CNN legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in Pennsylvania, New York, and the US Virgin Islands, at the law firms of Cevallos & Wong in Philadelphia, and Edelman & Edelman in New York, where he is Of Counsel. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are his.

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Danny Cevallos: Title VII, as written, does not explicitly include protections based on sexual orientation

But if Title VII is amended to protect the LGBTQ community, it should be done by Congress -- not the courts, writes Cevallos

CNN  — 

Jeff Sessions’ Department of Justice filed an amicus brief in a case before a federal appeals court, taking the position that Title VII of the Civil Rights Act of 1964 does not prohibit employment “discrimination based on sexual orientation.”

The original language of Title VII prohibits private employers from discriminating against an individual “because of such individual’s… sex.”

Whether you disagree with the DOJ’s position or not, the brief makes one thing glaringly apparent: Title VII needs to have a definition of “sex” that reflects how the word has changed from 1964 to 2017. Whether or not the word “sex” in the law ultimately protects the LGBTQ community should be a decision for the people, through their elected Congress. It should not be a decision made by unelected judges or unelected government agency officials.

According to CNN, the case in question is about Donald Zarda, a skydiving instructor. He used to tell his female tandem-jumping customers that he was gay to allay any concerns their boyfriends might have about Zarda being strapped so tightly to their girlfriends. One woman’s husband complained to Zarda’s boss about the comment, and Zarda’s employer fired him as a result. Zarda sued the company, Altitude Express, but died in a skydiving accident before the case went to trial.

The DOJ’s amicus submission on behalf of Altitude Express sparked swift reaction. The Gay & Lesbian Alliance Against Defamation, known as GLAAD, tweeted: “The DOJ says Title VII shouldn’t protect LGBTQ people, while Trump’s #TransBan proves exactly why it needs to.”

It certainly seems like there is a reasonable argument that Title VII’s protections should extend to LGBTQ persons.

There’s just one small problem: Title VII’s protections do not directly do that.

More specifically, the language of Title VII doesn’t protect LGBTQ people at all. Rather, it was a federal appellate court and the Equal Employment Opportunity Commission that looked at the statute, and the word “sex,” and decided that LGBTQ discrimination should be included.

We’ve pretended in the past that our laws say things they don’t – with results that many are happy with today. Roe v. Wade is a terrific example. The seminal decision on abortion rights was based on a constitutional “right of privacy,” one that is not explicitly in the Constitution. The court reasoned that the Constitution’s First, Fourth, Ninth, and 14th Amendments created a sort of “zone of privacy.” It further reasoned that this “zone of privacy” was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” If you’re a fan of the right to choose, then Roe and subsequent cases reached the right result, even if it was the product of some creative writing by the court.

Even the DOJ acknowledges in its brief it’s possible that, as a matter of policy, sexual orientation discrimination should be prohibited by law. The DOJ concedes that Congress and the executive branch have prohibited this kind of discrimination in other situations, such as in federal employment.

The ultimate issue is whether Title VII, as written, actually extends its protections to sexual orientation. The DOJ says it doesn’t, and it has a point.

Of course, the definition of Title VII has been defined and refined over the years – adding greater degrees of specification. In 1978, the Pregnancy Discrimination Act added the following to Title VII’s definitional section: “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”

That was it. Nothing about sexual orientation, though the phrase “include, but are not limited to” does leave an opening. In 1991, Congress again amended Title VII. It made a number of changes, including expanding employment discrimination protection to employees of Congress and some political appointees. It still chose to say nothing about the definition of the LGBTQ community.

The DOJ points out that the court hearing the case, other courts, and even our own dictionaries have historically agreed that the term “sex” in Title VII refers only to membership in a class delineated by biological gender. The Justice Department suggests that the recent 7th Circuit Court of Appeals decision in Hively v. Ivy Tech Community College holding otherwise is a mere aberration.

The DOJ points out that 10 other courts of appeals, including the court currently hearing the argument, have held that Title VII does not include sexual orientation discrimination.

Opposing the DOJ’s position is another “amicus” federal agency, the EEOC. In 2015, the EEOC took the position that sexual orientation discrimination is sex discrimination. But until then, the DOJ argues that even the EEOC had long taken the position that sexual orientation discrimination is not actionable under Title VII.

Should Title VII include sexual orientation in its protections? Probably. We’ve changed a lot as a society since 1964, 1972 and even 1991, when Congress last spoke on the issue.

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    But if a change is to happen, it should come from a democratically elected body – Congress – and not the courts and federal agencies, which are unaccountable to the people.

    Are the DOJ’s motives in the right place? That’s a totally different issue, and reasonable minds could conclude that this brief is not motivated by a neutral adherence to the text of a statute. One could reasonably infer that the real motive behind this amicus is an animus against a certain class of persons.

    But the legal argument is grounded in logic – at least for now.