Title : THE TRUMP EFFECT: WHEN SEX DISCRIMINATION ISN'T
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THE TRUMP EFFECT: WHEN SEX DISCRIMINATION ISN'T
Discrimination Based on Sex Is Debated in Case of Gay Sky Diver
NOTE: The Times article about the case is here: DISCRIMINATION BASED ON SEX
There are times when the Trump Administration's incompetence is so mind blowing that it's funny. No, not a joke, maybe, because so much of Trump's "policies" are just flat out cruel. But I have to admit to a warm, fuzzy feeling when you consider that his primo campaign promise, "deporting every single illegal alien so that whiny Whites can get back out into the California fields and start chopping lettuce again," the Muslim Travel Ban, is still thoroughly enmeshed in our court system more than a year after Trump's Executive Order was issued. (In truth, Steve Bannon's Executive Order, but let's not parse.)
In another spectacularly gratuitous action not unlike re-imposing a ban on transgender folks serving in the military, the Trump/Sessions Justice Department, decided to weigh in on a sexual orientation case, wrongful termination and sex discrimination, of a skydiver back in 2010. And, if you had any questions about the Session's Justice Department's "orientation," note that Sessions filed a "friend of the court" brief in this case on the vary same day the Department of Injustice decided that transgender folks could no longer serve in the military. The Zarda case is currently being heard in a Manhattan Federal Appeals Court.
The Donald Zarda case is interesting for it's straightforwardness. It's not often that we get a case based on discrimination where the facts are undisputed and the actions of parties are not muddied by conflicting versions of the truth. As a short refresher: David Zarda was (he has since died) a sky diving instructor at Altitude Express on Long Island. One of his customers, a female, appeared to be uncomfortable with the closeness tandem skydiving requires. Strapped to Zarda, he told the woman not to worry since he was "100% gay." And why not? One would assume that such an admission would have eased whatever concerns the woman night have had while being tightly bound to her instructor over "unwanted or inappropriate sexual advances."
Note that it wasn't the women who complained to Altitude Express but her boyfriend. Altitude Express fired Zarda over the incident which incident then resulted in the court case which is based on Title VII of the 1964 Civil Rights Act that bans discrimination based on "sex." And therein lies the heart of the problem. The Act doesn't specify "sexual orientation" or "sexual preference" or even "sexual proclivities." It says only "sex." This is not the first time court cases have challenged the meaning and impact of the Act. But in this case, the Second Circuit Federal Court of Appeals ruled in favor of Donald Zarda by a vote of 10 to 3. Two similar cases, sexual orientation cases based on Title VII, have resulted in two opposing rulings. Oddly enough, or maybe not given all the "oddities" of the Trump Administration, the intercession of the Justice Department in this case was at odds with the Equal Employment Opportunity Commission (the same Federal agency where Supreme Court Justice Clarance Thomas is "alleged" to have sexually harassed Anita Hill) who sided with Zarda.
The Jeff Sessions' response to this apparent lack of "coordination" or "agreement" between Federal entities? "The EEOC doesn't speak for the Federal Government." Really? Damn! The United States Equal Employment Opportunities Commission doesn't speak for the Federal Government? Would it be totally insane, then, to ask "Who the hell does the EEOC speak for?" Latvia maybe? Rwanda? Trinidad and Tobago? Which position also begs the question: "If the EEOC does not speak for the United States of America, then why do we have such a body anyway?" I'm sure that the Sessions' Department of Injustice would love to get rid of the EEOC and all those annoying and pesky cases of employment discrimination.
It remains to be seen if Altitude Express will appeal the decision to the Supreme Court. Or, if the Department of Injustice is serious about extending it's cruelty across the broadest range of humanity possible, maybe they will ask the Supreme Court to take up the case. After all, as they argue, the Civil Rights Act doesn't specify "sexual orientation" so, therefore, gays, lesbians, transgenders and anyone else who defines oneself as less than 100% female or 100% male is not accorded the protections afforded by the Civil Rights Act.
But let's look at what the DOJ is arguing. In their view you are either male or female and nothing in between. So then does this mean that for centuries gay men and women have been unfairly singled out for social, physical and legal punishment? I mean if we are only male or only female then there is no such thing as gay or lesbian or transgender or anything else that isn't a "man" or a "woman." Naturally, while society simply ignored sexual deviants like "gays" and "lesbians," they (we) actually did exist. But back in 1964 when the Civil Rights Act was passed, I'm guessing that Congress could never have dreamed that 50 years later the Government would be protecting the rights of transgender men and women to serve in the military. (Until the Trump Administration, of course.) The Act, in addition, did not list "hermaphrodites" or "gender fluid" folks either even though these folks exist - and did exist when the Act was passed - as well.
Just as soon as we divide up a population into two groups, "male" and "female," we are basing our definitions on sex, at least on observable sex based "facts." But you can't define "homosexual" or "heterosexual" (or gender fluid, or gay or lesbian or transgender) without first referencing "sex." So isn't it then logical to assume that when the Civil Rights Act employs the term "sex" this term also includes the entire range of Kinsey style variations even if these "variations" were unknown or unacknowledged by Congress in 1964?
But all of this definitional "confusion" is largely beside the point in the Altitude Express case. No one is arguing the facts of the case. Donald Zarda was fired for telling a woman that he was gay. I'm not sure why this admission would qualify as some reason for being fired particularly when, as he stated, it was to ease her concerns that he wasn't trying to feel her up or acting in some other sexually inappropriate manner. And why is it that her boyfriend brought the case and not her? She certainly had standing to do so.
But in the end, the most relevant question is why did the Justice Department weigh in on this case when its own EEOC was defending David Zarda? Good question. The only answer I can come up with is that in a certain typical Southern tradition, like denying the right of African Americans voting rights, the Sessions Department of Injustice was sending a message. And that message is: "If you are not 100% heterosexual then we don't care if you are discriminated against, fired from your job, are subjected to violence, get beaten to a pulp, or murdered, you are simply not a part of acceptable American society."
This folks, is a profoundly disturbing and reactionary stance in 21st Century America. We cannot let it stand.
Have A Good Day! But if you are a member of the LGBT community, just be careful - since we are living in Trumpland - who you out yourself to.
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