Employment Law Daily Sessions pulls the plug on policy protecting transgender against employment discrimination
Monday, October 9, 2017

Sessions pulls the plug on policy protecting transgender against employment discrimination

By Pamela Wolf, J.D.

Attorney General Jeff Sessions has officially reversed the Department of Justice’s current position that Title VII’s protections extend to claims of discrimination based on an individual’s gender identity, including transgender status. In an October 4, 2017, memorandum to U.S. Attorneys, Sessions wrote, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The Justice Department will take this position going forward, except in cases where lower-court controlling precedent dictates otherwise, in which case the issue is to be preserved for potential review.

Sessions withdrew the December 15, 2014, memorandum issued by Attorney General Eric Holder under the Obama Administration, which at that time also had reversed then-current DOJ policy. Announcing Holder’s policy change in a press release, the DOJ noted that Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s … sex,” among other protected characteristics. At the time, Holder’s policy change put the Justice Department in sync with the EEOC’s similar take on Title VII protections.

Not surprising. The move by Sessions really did not come as a surprise. Despite initial assurances that “President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community,” as the White House said in January 2017, just a month later in February, the Departments of Justice and Education issued joint guidance withdrawing the Obama-era guidance interpreting Title IX protections to extend to transgender students. That new guidance suggested instead that the Obama guidance fell short of showing how its interpretation was consistent with the language of Title IX, and with the rights of states and local school districts in establishing educational policy.

In July, Trump announced via Twitter that the U.S. military would no longer accept or allow transgender individuals to serve “in any capacity,” stating that “the military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”

On the same day Trump made his Twitter announcement, the DOJ filed an amicus brief in the Second Circuit, asserting that Title VII does not include protection against discrimination based on sexual orientation (in the en banc hearing of Zarda v. Altitude Express dba Skydive Long Island). The move pitted the DOJ and the EEOC at odds.

In an amicus brief filed a month earlier in the same case, the EEOC noted that it is the “primary agency” charged with interpreting Title VII. The Commission argued that because claims of sexual orientation discrimination “necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping,” they fall “squarely within Title VII’s prohibition against discrimination on the basis of sex.”

Reactions came quickly. The news of Session’s policy reversal spread quickly and prompted several negative reactions. Senator Patty Murray (D-Wash.), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, said “This is yet another shameful attack on workers and the LGBTQ community from an Administration that has already made very clear it will do nothing to stand up and protect them. The Trump Administration should be fighting to protect the rights of all—including transgender Americans—but sadly, this is clearly not the case.

“With this latest action, Jeff Sessions continues to confirm the deep fears we had with his nomination to serve as Attorney General—that he would seek to undermine civil rights, roll back protections for the most vulnerable, and so much more.”

Bobby Scott (D-Va.), ranking member of the House Education and the Workforce Committee, and Mark Takano (D-Calif.), ranking member of the Subcommittee on Workforce Protections, said, “Attorney General Sessions’ decision to dismiss the Obama administration’s memo to protect transgender Americans under Title VII … is yet another example of the Trump administration’s disturbing pattern of rolling back the civil rights of the most vulnerable Americans. In 1989, the Supreme Court found in Price Waterhouse v. Hopkins that gender discrimination based on sex stereotyping is a violation of Title VII. The [EEOC], and a number of federal court decisions built on the precedent from Price Waterhouse, have found sex discrimination does include discrimination on the basis of sex stereotyping—which also includes gender identity.”

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