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The Department of Justice Changes its Position on Transgender Discrimination


There is currently no federal law that explicitly prohibits discrimination based on gender identity. There is no federal law that provides even general protection against discrimination for LGBT employees. Less than half of the states in our country have enacted laws that protect employees based on sexual orientation and gender identity/expression. Although there is proposed federal legislation that would explicitly prohibit sexual orientation or gender identity discrimination, it is having a difficult time getting passed.

The EEOC’s position is that Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity as protected categories; however, the EEOC interprets the statute's sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

The Department of Justice’s stance during the prior administration

On December 15, 2014, Former U.S. Attorney General Eric Holder issued the following statement with regard to gender identity and employment discrimination:

I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination ‘because of . . . sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.

However, current U.S. Attorney General Jeff Sessions has made an announcement that the Department’s position on transgender employment discrimination has changed.

Sessions issued memo on October 4, 2017 reversing the Department’s position

Jeff Sessions’ memo, titled “Revised Treatment of Transgender Employment Discrimination Claims,” effectively reverses the Department’s position, stating that Title VII does not include discrimination based on gender identity. This will be the Department’s position “in all pending and future matters. The only exception presently will be where controlling lower-court precedent provides otherwise. In those cases, the issue will be preserved for potential further review.

The reasoning behind the change in position

According to the memo, despite the various protections provided to transgender individuals under Title VII and other federal laws, Sessions reasons that Title VII does not prohibit discrimination based on gender identity per se. More specifically, Sessions states in the memo that “Title VII expressly prohibits discrimination ‘because of . . . sex’ and several other protected traits, but it does not refer to gender identity.” He goes on to say that the term “sex” refers to biologically male or female.

The effects of the DOJ memo

As many employment discrimination lawyers point out, most employers who are covered by Title VII are also covered by state anti-discrimination laws as well. Many of those states have included, or are considering including, gender identity as a protected characteristic.

Furthermore, this memo does not affect the EEOC’s position or the position of other agencies such as the Occupational Safety and Health Administration (OSHA) which has taken a similar position.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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