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Justice Department in Legal Pretzel Over LGBT Rights

Dec. 19, 2018, 7:04 PM

The Justice Department is in an awkward spot: It once again is defending a move to protect LGBT rights, despite disagreeing with it.

The DOJ is defending the Equal Employment Opportunity Commission in a lawsuit that challenges the commission’s position on LGBT rights, even though the two agencies differ on guidance.

A DOJ lawyer told a federal court in Texas that a group of Christian pastors and a private health-care company don’t have legal standing to sue to block EEOC guidance on job bias against gay and transgender workers. But the department agrees with the church leaders and company that the EEOC has it wrong when the agency says LGBT discrimination is a form of sex bias already banned by federal law.

The lawsuit raises “legal issues of great interest and importance concerning the scope of” federal workplace discrimination law “and the need to protect the foundational principles of religious freedom” Justice Department lawyer Eric Soskin told the court Dec. 17.

The department says Congress didn’t have LGBT workers in mind in 1964 when it passed a civil rights law banning sex discrimination on the job. The EEOC argues that an employer that makes job decisions based on sexual orientation or gender identity necessarily considers the person’s sex.

The Texas litigation comes as the U.S. Supreme Court has been asked to take up a trio of cases over whether LGBT bias is sex discrimination. That includes a case in which the EEOC convinced a federal appeals court to rule against a Michigan funeral home that fired a worker after she announced she was transitioning to a woman.

The Justice Department represents the EEOC in all cases before the high court. Solicitor General Noel Francisco has asked the court not to take up the case, urging it to decide what to do with the other two cases first.

The Justice Department didn’t immediately respond to Bloomberg Law’s request for comment.

Technical Defense

The U.S. Pastor Council and Hotze Health & Wellness Center want the Texas court to bar the EEOC from pursuing LGBT discrimination cases on sex bias grounds. They told the court that the EEOC’s approach violates the Religious Freedom Restoration Act and other federal laws by not specifically exempting “churches or corporations that oppose homosexual or transgender behavior on religious grounds.”

Jonathan Mitchell, a former Texas solicitor general and Donald Trump’s pick to run the Administrative Conference of the United States, is representing the Pastor Council and Hotze Health. Mitchell represented Mississippi in the state’s successful defense of a law allowing businesses to deny certain services to LGBT people based on their own religious beliefs.

Mitchell declined to comment on the lawsuit.

The DOJ’s Soskin told the court that the Pastor Council and Hotze Health don’t have standing to sue. He said the EEOC hasn’t pursued LGBT discrimination cases against religious organizations and that there’s no reason to believe the agency is investigating Hotze Health.

Soskin also pointed to recent moves from the Trump administration to bolster religious freedom. That includes DOJ guidance stating that religious protections cover “persons collectively exercising their religion through churches or other religious denominations, religious organizations, schools, private associations, and even businesses.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com