Blow for Trump as court rules workers can’t be fired for being gay

In defiance of the Trump administration, a federal court has affirmed that lesbian and gay American workers are indeed protected from employment discrimination.

On Monday, the Second Circuit Court of Appeals ruled that a federal law, Title VII of the Civil Rights Act, that bars employment discrimination also includes the protection of workers on the basis of their sexual orientation.

The 1964 law specifically prohibits discrimination on the basis of race, colour, religion, sex or national origin. The Trump administration filed a submission with the court last year arguing that Title VII was not intended to provide protection to gay workers.

The panel of 13 judges, however, found otherwise in a 10-3 decision and said that “sexual orientation discrimination constitutes a form of discrimination ‘because of… sex,’ in violation of Title VII.”

Judge Robert Katzman wrote in the majority opinion: “A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women

“We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

The case, first filed in 2010, concerned a gay skydiving instructor, Donald Zarda, who was dismissed by his employer, Altitude Express, after he told a customer that he was gay and she complained.

Zarda explained that he said this to make her feel more comfortable when they were tightly strapped together for a dive. The company said he was fired because he “failed to provide an enjoyable experience for a customer”.

While Zarda went on to die in a skydiving accident, his estate continued to pursue the matter on his behalf.

The ruling has major ramifications in the US, which has no specific federal protection for LGBTQ employees. While some states and jurisdictions have enacted local protections, LGBTQ workers can still be fired in many places simply because of their sexual orientation or gender identity.

LGBTQ media advocacy organisation, GLAAD welcomed the decision. “Today’s court ruling is a decisive victory, and a significant rejection of the Trump Administration’s ongoing campaign to strip rights and protections away from LGBTQ people in the workplace,” said Sarah Kate Ellis, President and CEO of GLAAD.

Like sexual orientation, the Trump Administration has also been working to support an anti-trans interpretation of sex discrimination by denying that gender identity is protected under the Civil Rights Act.

The case is likely to be appealed via the Supreme Court for a final and definitive decision.