The landmark Civil Rights Act of 1964 prohibits employers from discriminating on the basis of “race, color, religion, sex, or national origin,” but does the ban on sex-related discrimination extend to sexual orientation? Not according to the Trump administration, which recently told a federal appeals court that this protection only applies to equal treatment of male and female workers.

The administration made its position clear in an amicus brief [PDF] filed yesterday with the Second Circuit Court of Appeals in the case of Zarda v. Altitude Express.

In that lawsuit, a New York skydiving company was accused of violating the rights of Donald Zarda, a former instructor with the company who was fired after disclosing to a tandem dive customer that he was gay.

The federal Equal Employment Opportunity Commission (EEOC) has previously come out in support of Zarda, filing its own amicus brief [PDF], arguing that “sexual orientation discrimination is sex discrimination, and sex discrimination violates Title VII” of the Civil Rights Act.

However, in its brief, the Justice Department explicitly states that the EEOC ” is not speaking for the United States” in this matter.

The DOJ maintains that both legal precedent and Congressional action — or rather, lack of action — back up its contention that sexual orientation is not included under the law’s definition of “sex.”

The brief notes that Congress has twice amended Title VII of the Civil Rights Act — in 1978, then again in 1991 — but in both cases did nothing to expand or clarify what is covered under the prohibition against sex discrimination.

“In fact, every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation,” writes the DOJ, which maintains that, “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

This failure to include sexual orientation in Title VII is not an oversight, claims the DOJ, noting that Congress has included prohibitions against this sort of discrimination in other laws, including the federal hate crimes statute and the Violence Against Women Act. In both cases, sexual orientation is listed separately from “gender” or “sex.”

The DOJ’s brief runs counter to arguments previously provided by civil rights advocates and a number of large employers.

In June, a coalition of 50 large companies — including Google, Viacom, Microsoft, Lyft, Ben & Jerry’s, CBS, Spotify, Kickstarter, and Levi Strauss — collectively filed a brief [PDF], claiming that excluding sexual orientation from Title VII protections “has wide-ranging, negative consequences for businesses, their employees, and the U.S. economy.”

“Our nation’s employers and employees would be far better off with a lesbian, gay, bisexual, and transgender workforce that need not experience or fear discrimination for simply doing their jobs,” wrote the companies.

Similarly, groups like Lambda Legal and the American Civil Liberties Union have filed briefs arguing against the DOJ’s position.

“Employers who take sexual orientation into account necessarily take sex into account,” argues the ACLU [PDF], “because sexual orientation turns on one’s sex in relation to the sex of the individuals to whom one is attracted. And bias against lesbian, gay, and bisexual people turns on the sex-role expectation that women should be attracted to only men (and not women) and vice versa. There is no principled reason to create an exception from Title VII for sex discrimination that involves sexual orientation.”

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