Metro Weekly

Justice Department reverses policy protecting transgender workers

Courts have previously found that Title VII does protect discrimination based on gender identity and sex stereotyping

U.S. Sen. Jeff Sessions – Photo: Gage Skidmore.

U.S. Attorney General Jeff Sessions has reversed a federal policy protecting transgender workers from discrimination under Title VII of the Civil Rights Act.

“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 memo states. It was first reported on by BuzzFeed.

According to the memo, the U.S. Department of Justice will take this position in all pending and future matters, including several high profile cases in which transgender individuals are suing for workplace discrimination under Title VII.

This includes a Michigan funeral director dismissed from her job after announcing her intent to transition. That case was argued before a three-judge panel on the 6th U.S. Circuit Court of Appeals on Wednesday, though the Justice Department did not file a brief in that case.

“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” Sessions writes in his memo. “This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”

A DOJ spokesman told BuzzFeed that the department chose to issue the memo because they “cannot expand the law beyond what Congress has provided.”

That essentially means that the DOJ will shy away from supporting any interpretation of Title VII that provides protections for LGBTQ people, unless Congress changes the law to explicitly include them.

it’s the latest action by the DOJ that can be interpreted as a swipe at LGBTQ Americans, following the department’s role in rescinding Obama-era guidance to schools on how to treat transgender students according to their gender identity, a brief in favor of a Christian baker challenging Colorado’s nondiscrimination law so he can refuse service to same-sex couples, and a decision by DOJ to argue, in a case out of the 2nd Circuit Court of Appeals, that Title VII does not protect gay, lesbian or bisexual people from employment discrimination.

Historically, Title VII, which prohibits discrimination on the basis of sex, has generally been interpreted to include discrimination on the basis of gender identity or on the basis of a person’s refusal to adhere to traditional or conventional sex stereotypes. The Supreme Court adopted this interpretation when it ruled in favor of a cisgender woman denied a promotion because she did not exhibit so-called “feminine” qualities in the case of Price Waterhouse v. Hopkins

The Equal Employment Opportunity Commission has also interpreted “sex discrimination” to mean any instance where a person is discriminated on the basis of gender identity and sex-stereotyping. Therefore, the EEOC has found, Title VII bans anti-transgender discrimination (an interpretation that a number of federal courts have adopted) and sexual orientation (an interpretation that has been less embraced by federal courts but may soon be argued before the Supreme Court).

LGBTQ advocates and allies were dismayed, but largely not shocked, by Sessions’ move.

“Sessions’s shameful memo is yet another purely political attack on some of the most vulnerable members of our community: transgender people like me,” Kellan Baker, a member of the board of directors for Equality Federation, said in a statement.

“The Department of Justice memo on Title VII tries to undo established law protecting transgender employees simply by wishing it so. This is a vicious action intended to cause confusion where there was none, with the goal of singling out transgender people and making it harder for us to survive and thrive in this country,” Kris Hayashi, the executive director of Transgender Law Center, said in a statement.

“The Attorney General does not have the power to change clearly established law, only to enforce it. Transgender Law Center’s 2012 and 2015 cases on behalf of Mia Macy and Tamara Lusardi, along with extensive case law, firmly established that transgender workers are protected from discrimination under Title VII,” added Hayashi. “Unlike the Attorney General, Transgender Law Center is committed to defending this country’s civil rights laws — and we will take him and this administration to court to do it.”

Sarah Kate Ellis, the president and CEO of GLAAD, called the memo an “outright attack” on transgender Americans showing that Sessions is “working according to his own ideology and not actual justice.”

“Sessions joins President Trump and an administration who are stopping at nothing to strengthen institutional discrimination and walk back the hard-fought progress made by the LGBTQ community,” Ellis said in a statement.

The Democratic National Committee issued a statement calling on the Republican-led Congress to pass explicit protections for LGBTQ people, saying that Sessions “can’t be trusted” to protect the civil rights of the LGBTQ community. One such solution that has been proposed is passing the Equality Act, which would amend Title VII to include protections for sexual orientation and gender identity.

“This administration’s focus on attacking and degrading transgender people is reaching a fever pitch,” Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders, said in a statement. “Today’s developments illuminate just how far-reaching and relentless this unprecedented effort to roll back basic protections for LGBT people will be.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com