"The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect".
Understandably, it sparked outrage among LGBT organizations and advocates.
The brief was in response to Donald Zarda's lawsuit against his employer, a skydiving company called Altitude Express. Tragically, in October 2014, Zarda died in a base jumping accident in Switzerland.
Shannon Minter, the legal director of the National Center for Lesbian Rights, downplayed the impact of the Justice Department arguing against gay rights in the case, "because any such shift would inevitably be viewed as political and, as such, would likely be given little if any weight by the courts". The appeals court initially held that federal law provided him no protections, but it has since agreed to reconsider its ruling. The word, which shows up at least 7 times in the DOJ's brief to refer to gay men and lesbians, is often perceived as a dog whistle for homophobes.
The Justice Department announced on Wednesday that it does not consider workplace discrimination against LGBT individuals to be prohibited under federal civil rights law. However, the Supreme Court has yet to weigh in on whether "sexual orientation" is explicitly protected under Title VII.
The filing not only puts the DOJ at odds with how Title VII was interpreted under the Obama Administration, which BuzzFeed notes expanded the title to cover gender identity, but also with another federal agency, the Equal Employment Opportunity Commission.
Justice Department spokesman Devin O'Malley said the brief was consistent with rulings by 10 federal appeals courts and "reaffirms the Department's fundamental belief that the courts can not expand the law beyond what Congress has provided".
The brief was filed just hours after Donald Trump announced that transgender people will not be allowed to serve in the United States army. Why would you argue-voluntarily, we add-that your fellow Americans should not be protected from discrimination based on their sexuality?
The American Civil Liberties Union called the DOJ position "one more gratuitous and extraordinary attack on LGBT people's civil rights", and said it would defend Americans' rights in the courts.
The Justice Department intervened in a discrimination case, to argue that civil rights laws should not protect gay workers from discrimination.
The US District Court for the Eastern District of NY first rejected Zarda's claim by ruling that Title VII does not offer protection on the basis of his sexual orientation. State law provides no protection on account of sexual orientation or gender identity and the law effectively provides explicit protection for discrimination on these grounds in the name of "religion".
Opponents - a group that now includes the US government - disagree.