Today, the U.S. Department of Justice (DOJ) under President Donald Trump issued a memo reversing course on an Obama administration memo from 2014 declaring that transgender employees are protected from workplace discrimination by Title VII of the Civil Rights Act of 1964.
In the new memo, U.S. Attorney General and DOJ head Jeff 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.”
While Sessions is technically correct that Title VII only explicitly bans employment discrimination based on race, color, religion, sex and national origin, a growing number of appellate courts have begun to interpret transgender discrimination as a form of sex discrimination.
“Courts have repeatedly ruled that transgender people are protected by sex discrimination laws in employment, education, housing and healthcare,” responded Mara Keisling, executive director of the National Center for Transgender Equality.
Keisling continued, “According to Sessions, an employer is free to hang a ‘Transgender Need Not Apply’ sign in their window. Fortunately, he is dead wrong on the law. We’ll see him in court.”
Interestingly, the DOJ’s reasoning here closely echoes the same reason they used to justify anti-gay workplace discrimination in a federal appeals court.
However, workplace discrimination lawyers, numerous court decisions and 125 members of Congress agree discrimination based on sexual orientation or gender identity is a form of sex discrimination because it punishes people for acting contrary to how their sex is “supposed to” act.
Regarding the DOJ’s recent move, James Esseks, director of the American Civil Liberties Union’s LGBT and HIV Project, wrote:
Today marks another low point for a Department of Justice, which has been cruelly consistent in its hostility towards the LGBT community and in particular its inability to treat transgender people with basic dignity and respect.This Department of Justice under Jeff Sessions has time and time again made it clear that its explicit agenda is to attack and undermine the civil rights of our most vulnerable communities, rather than standing up for them as they should be doing.