This column by ACRU General Counsel Ken Klukowski was published July 29, 2017 by Breitbart.

WASHINGTON, DC — Justice Department lawyers told a federal appeals court on Wednesday that only Congress can decide to make sexual orientation and gender identity protected classes under federal civil rights laws, reversing the Obama administration’s position that courts can reinterpret previous laws to include these new social categories.

The U.S. Court of Appeals for the Second Circuit has decided to rehear en banc the case Zarda v. Altitude Express, where a plaintiff claims that when Title VII of the Civil Rights Act of 1964 forbids employers from discriminating on the basis of sex, the word “sex” includes sexual orientation. (Parallel cases also argue that “sex” includes gender identity and transgender issues.)

In recent years, lawyers for liberal activist groups shifted from their perennial efforts to amend federal civil rights laws to declare sexual orientation and gender identity to be specially protected categories like race, arguing now that legislative changes are not needed, because current laws against sex discrimination already cover those newer social disputes. Under President Barack Obama and Attorneys General Eric Holder and Loretta Lynch, the U.S. Department of Justice (DOJ) adopted those positions over the past several years.

On July 26, the Trump-Sessions DOJ reversed course, arguing that the words of Title VII have the same dictionary meanings today that they had in 1964, and thus that homosexuality and transgenderism are not specially protected legal categories.

DOJ’s legal brief to the New York-based appeals court explains, “The United States submits that the en banc Court should reaffirm its settled precedent holding, consistent with the longstanding position of the Department of Justice, that Title VII does not reach discrimination based on sexual orientation.”

The brief goes on to say that defining “sex” to mean biological sex, determined by factors such as DNA and anatomical features, “correctly reflects the plain meaning of the statute, the overwhelming weight and reasoning of the case law, and the clear congressional ratification of that interpretation.”

“The question presented is not whether, as a matter of policy, sexual orientation discrimination should be prohibited by statute, regulations, or employer action,” the Trump administration’s brief continued. DOJ currently takes no position on the policy question of whether lawmakers should amend current statutes to add those categories. The brief also notes that some lawmakers — mostly Democrats — have repeatedly introduced bills to add these additional categories, but that such measures have never passed Congress.

But the power to change the law resides with elected lawmakers. “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts,” DOJ argues.

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a ruling that Title VII covers homosexuality, and filed a friend-of-the-court brief with the Second Circuit taking that position in Zarda.

DOJ informed the court of appeals that although the EEOC “has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference.”

Federal appeals are heard by three-judge panels. An en banc rehearing is when a court of appeals takes the rare step of having all the judges on the court rehear an appeal as a group. There are currently 11 judges on the left-leaning Second Circuit. There are also currently two vacancies on the court, but President Donald Trump has not yet nominated anyone to fill those seats.

The en banc appeals court will hear arguments in the case in late September. It is considered a strong candidate for review by the U.S. Supreme Court.

Zarda v. Altitude Express is Docket No. 15-3775 at the Second Circuit.