Trump's Battle Over LGBT Discrimination Is Just Beginning

LGBT issues have been all over the news this week. On Wednesday, President Trump announced a ban on transgender Americans serving in the military. That evening, the Department of Justice made another significant move in the fight over LGBT rights, albeit with less flash than a tweet storm: It filed an amicus brief in a major case, Zarda v. Altitude Express, arguing that it’s not illegal to fire an employee based on his or her sexual orientation under federal law.

LGBT advocates were quick to decry the DOJ’s position as bigotry. But there’s a deeper context here: The brief was a throw-down in nuanced fight about the nature of the administrative state. During the Obama years, federal agencies slowly began expanding their interpretation of sex discrimination, which is prohibited by a number of civil-rights laws. The Equal Opportunity Employment Commission, the independent agency that Title VII, the civil-rights statute that protects workers, covers bias based on sexual orientation; it took a similar position in . Critics argued that this interpretation reads something into the law that isn’t there and accused the Obama administration of enforcing its political agenda through executive fiat. In effect, that’s exactly what Trump’s DOJ argued in its brief.