AILSA CHANG, HOST:
Today a federal appeals court in New York ruled that under federal law, employers cannot discriminate on the basis of sexual orientation. Gay rights advocates are calling this a major victory and a rebuke to the Justice Department, which jumped into the case midway. The government argued that federal law does not protect workers from anti-gay discrimination. And joining me now to talk through the case is Dominic Holden. He covers the Justice Department at BuzzFeed News. Welcome.
DOMINIC HOLDEN: Thank you for having me.
CHANG: So can you first just tell us very briefly what happened in this particular case? There was a sky diver.
HOLDEN: Right. So back in June of 2010, Donald Zarda, a sky diving instructor, was teaching students on Long Island. And he had a female student, and they were doing a jump in tandem. It's very close quarters - hips to hips, shoulders to shoulders.
HOLDEN: And he had made what he says was a joke letting her know that she didn't have to worry about any inappropriate advance, that he was gay and that he had the ex-husband to prove it. Well, after the jump, she was unhappy about it, apparently told her boyfriend that there had been inappropriate touching and had used the joke to sort of get himself off the hook. Donald Zarda was shortly thereafter fired, and he filed a lawsuit in federal court. Now, the issue is there is no federal law that directly bans anti-LGBT workplace discrimination.
HOLDEN: So what he did is he alleged a violation of Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex.
CHANG: Right. So Title VII, as you say it, does not particularly ban sexual orientation discrimination, but the 2nd Circuit here ruled that it essentially does. How did it conclude that sexual orientation discrimination is a form of sex discrimination?
HOLDEN: Right. So Title VII and analogous law that applies to students bans sex discrimination, but it doesn't say necessarily what sex discrimination is. It doesn't say if it's sexual orientation or gender identity or a person's sex at birth. So this is left for a lot of room for federal courts to try to figure out what it means.
HOLDEN: And for LGBT advocates, they have been trying to say that they are covered by this law. And in the context of sexual orientation discrimination, what these advocates, what the Equal Employment Opportunity Commission has argued and what this court found today was that sex discrimination is sexual orientation discrimination. And it's because, among other things, they would not be discriminated against but for their sex.
CHANG: Well, how did the Justice Department argue against that in this case? How did they say that sexual orientation was not about sex?
HOLDEN: What the Justice Department argued was it was not the intent of Congress to have banned anti-gay discrimination in the workplace. And if they had wanted to, they could have explicitly written it into the law. But as one of the justices wrote in a concurring opinion - that it is not about congressional intent or legislative intent, which is very hard to ascertain, but rather the plain text of the law. And here, the plain text found that sexual orientation discrimination is necessarily a type of sex discrimination.
CHANG: OK, so give me a lay of the land now. How have other appellate courts come down on this particular issue?
HOLDEN: The 11th Circuit found that the law did not cover sexual orientation, but the 7th Circuit last April found that it did. So part of the significance of this case is it builds on this trend. Now you have two circuits having come to the same conclusion. And part of the reason this is a big deal is because of the Justice Department's own making. They stepped into it. And there's this question about the ability or the inability of this administration to reverse the trend in federal court, so people were watching. So the fact that this is a big gay rights win is amplified by the fact that it's a Trump administration loss.
CHANG: And let's talk about that. How does Attorney General Jeff Sessions' position in this case fit into a larger approach towards LGBT issues?
HOLDEN: Since Sessions became the attorney general about a year ago, he has been a steady opponent of LGBT rights, rolling back policies and positions that the Justice Department had assumed under President Obama. And generally what he said is he's simply following the plain text of the law. This is a little bit mushy for him because he's also argued in Colorado, where there's an anti-discrimination law for LGBT people, that a baker had a right to turn away a gay couple even though...
HOLDEN: ...The actual plain text of the law doesn't necessarily allow that. And now he's arguing in cases of transgender and lesbian, gay, bisexual employment - that they're not protected. The problem is he's running up against courts that disagree with him.
CHANG: All right. Dominic Holden is a reporter at BuzzFeed News. Thank you very much for coming in today.
HOLDEN: Thanks for having me.
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