Executive Summary: On July 26, 2017, President Trump announced via Twitter that the military, arguably the country’s largest employer, will no longer allow transgender people to serve, thus breaking from the Obama Administration’s lift of the transgender ban and setting off a firestorm of controversy. Almost simultaneous with President Trump’s tweets, the U.S. Department of Justice (DOJ) filed an unsolicited amicus brief in Zarda v. Altitude Express, urging the en banc Second Circuit Court of Appeals to uphold prior precedent that sexual orientation is not a protected class under Title VII. This runs in stark contrast to the position of the Equal Employment Opportunity Commission (EEOC), which already had filed an amicus brief taking the opposite position. This may mark a shift in the Trump Administration’s position on LGBTQ rights. Recently, states have started to respond, signing laws to provide further protection to LGBTQ rights. The take away from this: the rift on LGBTQ rights seems to be growing.

Background:

On July 26, 2017, President Trump announced in a series of tweets the following:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow…… Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming…victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you[.]”

The announcement is a break from the Obama Administration’s lift of the transgender military ban over a year ago, which allowed transgender people to serve openly in all branches of the military and included provisions for training, accommodation, medical treatment, and gender transition for actively serving members of the military. The Joint Chiefs of Staff responded that, despite the President’s tweets, the U.S. military will not make any changes to its Obama-era transgender policies until further clarification is provided, leaving the future for transgender military personnel largely unknown.

Shortly after President Trump’s tweets, on July 26, 2017, the DOJ also weighed in on the future of LGBTQ rights in employment by filing an unsolicited amicus brief in Zarda v. Altitude Express, currently pending before the Second Circuit in en banc review. As previously reported, the issue of whether Title VII provides protection for employees who are discriminated against based on their sexual orientation has been hotly debated in the U.S. Circuit Courts of Appeals. In Zarda, the plaintiff was a gay skydiving instructor who alleged he was terminated when his employer learned he had disclosed his sexual orientation to a customer. After a split Second Circuit in Christiansen v. Omnicom held that it would not overrule its prior precedent set out Simonton v. Runyon that Title VII does not prohibit sexual orientation discrimination in the workplace, the Second Circuit dismissed Zarda’s claim for the same reason. Zarda sought en banc review, which was granted earlier this year. At the request of the Second Circuit, in June 2017, the EEOC filed an amicus brief urging the court to extend Title VII protections to prohibit discrimination based on sexual orientation as the Seventh Circuit did in Hively v. Ivy Tech Community College. The DOJ’s newly filed brief, which was not requested or expected by the Second Circuit, takes the opposing position, leaving a split not only in the courts, but in President Trump’s own administration. The DOJ, contrary to the EEOC, argued that Title VII does not prohibit discrimination on the basis of sexual orientation, specifically identifying the absence of a definition for the term “sex” in Title VII and Congress’ explicit decision not to include “sexual orientation” as a listed protected trait. The DOJ also took the position in its brief that, despite the EEOC’s responsibility for enforcing Title VII in the private sector, “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” This filing by the DOJ, in combination with President Trump’s tweets regarding the transgender military ban and the retraction of Obama-era guidance on transgender children in public schools, shows the potential direction of the Trump Administration on LGBTQ rights.

Employers have also taken notice of this case. At least 50 U.S. employers from a variety of industries have joined together to file a brief in support of Zarda and LGBTQ individuals. These employers take the position that, from a business perspective, Title VII should protect the rights of LGBTQ individuals where the existent “patchwork” of antidiscrimination laws regarding sexual orientation and any alternative interpretation of Title VII excluding protection on the basis of sexual orientation interferes with and increases the costs of doing business. The three states making up the Second Circuit (New York, Connecticut and Vermont), as well as several civil rights groups, including the Anti-Defamation League, the Asian American Bar Association and the Hispanic National Bar Association, have also filed briefs taking the same position.

Furthermore, over the past two weeks, at least two states, New Jersey and Connecticut, have taken action in relation to LGBTQ rights. In New Jersey, Governor Chris Christie signed legislation, S3067/A4652, on July 21, 2017, requiring the state education commissioner to issue guidelines to help schools address the needs of transgender students to ensure a nondiscriminatory environment. The legislation specifically requires the education commissioner to issue guidelines concerning (a) the use of restrooms and locker rooms; and (b) methods whereby school documentation can reflect a student’s preferred gender, name and pronoun. In Connecticut, on the same day as and in direct response to President Trump’s transgender military ban tweets, Governor Dannel Malloy signed largely symbolic Executive Order No. 60 reinforcing the state’s nondiscrimination policies in the military. Governor Malloy’s executive order “directs… armed forces of the state to take no action that discriminates against service members…unless superseded by federal law, regulation, or formal directive from the U.S. Department of Defense[.]”

Bottom line:

Until a decision is reached by the U.S. Supreme Court on whether Title VII provides protection against discrimination based on sexual orientation – something LGBTQ legal advocacy group Lambda Legal intends to request through an appeal of the Eleventh Circuit’s ruling in Evans v. Georgia Regional Hospital – or Congress acts to clarify the scope of Title VII, employers must continue to be diligent about keeping up with local and state laws to determine the legal protections available to LGBTQ employees and patrons.

The current inconsistency in LGBTQ policies and laws across the country may prove particularly challenging to multi-state employers, where local human resources departments are provided with national policies and employee handbooks that may not be tailored to individual states and their unique laws. The more conservative approach to minimizing liability is to maintain national policies that prohibit discrimination not only against the traditional protected classes, but also based on sexual orientation, gender identity, gender expression, and transgender status. Policies should prohibit such class-based discrimination and provide comprehensive complaint and investigation procedures. Furthermore, employers may consider advancing policies allowing transgender employees to use the bathroom of their choice, as well as policies and workplace training on transgender inclusion in the workplace, including gender transition guidelines, employee name and e-mail address change logistics, use of proper pronouns in documents and in oral communications, etc.

With regard to transgender military policy, it is unclear whether or when President Trump’s tweets will be clarified through formal guidance.