Note: This article has been updated to include a statement from Idaho Attorney General Lawrence Wasden.
Idaho’s attorney general and its newest member of Congress have joined a case before the U.S. Supreme Court arguing that federal civil rights laws prohibiting discrimination based on gender do not apply to those who are gay, bisexual or transgender.
Idaho Attorney General Lawrence Wasden and U.S. Rep. Russ Fulcher, both Republicans, have signed on to friend-of-the-court briefs, called amicus briefs, filed in three pending U.S. Supreme Court cases regarding protections for LGBTQ employees.
The Supreme Court announced in April that it would take the cases, which involve people who claim they were fired because of their sexual or gender orientation, to decide whether federal law prohibiting employment discrimination based on sex applies to gay and transgender employees. The court is expected to take up the cases later this year.
The briefs argue that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, does not specifically identify “sexual orientation” and “gender identity” as protected classes.
“The plain and unambiguous meaning of ‘sex’ is biological status as male or female,” according to the 48-page brief filed Aug. 23 by 15 states. “Far from being synonymous with ‘sex,’ the terms “sexual orientation’ and ‘gender identity’ have long been used in contrast with ‘sex’ to mean something distinct.”
Other states joining this filing are Alabama, Alaska, Arkansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and West Virginia.
The amicus briefs also argue that any modifications to Title VII to include sexual orientation and gender identity must be done by Congress, which sets policy, not the courts.
“If the government is to be ‘of the people, by the people, for the people,’ such a momentous change should be made by the legislature,” states the 41-page brief filed Aug. 26 by eight Republican U.S. senators and 40 Republican U.S representatives, including Fulcher, who represents Idaho’s 1st congressional district. No other members of Idaho’s congressional delegation have joined the case.
Idaho Attorney General Lawrence Wasden said in a statement Wednesday, “My signing on to this brief is not a stance against workplace protections for the LGBTQ community. Rather, my concerns are based in the rule of law and the way some courts are applying the express language of a federal law written more than five decades ago.”
Wasden continued, “When Congress wrote and passed the Civil Rights Act of 1964, it did not include LGBTQ protections. If these protections are to be added today, the proper way to do so is to have Congress update the Act to reflect changes in our society that have occurred over the last 55 years. After all, under our Constitution, it is a function of Congress to write federal law and not the courts.”
The Statesman also reached out to Fulcher’s office for comment.
In July, 21 states and 153 members of Congress filed friend-of-the-court briefs urging the U.S. Supreme Court to extend civil rights protections to gay and transgender employees.
“We firmly believe the language of Title VII makes clear that workplace discrimination based on an individual’s sexual orientation or gender identity is unlawful. Title VII prohibits sex discrimination,and sexual orientation and gender identity discrimination are forms of sex discrimination,” states the brief filed by members of Congress.