- The Magazine
Attorney General Eric Holder announced Thursday that the Justice Department will begin taking the position in litigation that Title VII of the Civil Rights Act of 1964 prohibiting sex discrimination extends to claims of discrimination based on gender identity.
In a Dec. 15 memo to all Department of Justice component heads and U.S. Attorneys, Holder wrote that he has determined the “best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” The move is a reversal of policy by the Justice Department, which previously did not consider discrimination against transgender people to be sex discrimination.
“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status,” Holder said in a statement. “This will help to foster fair and consistent treatment for all claimants. And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”
In the memo, the outgoing attorney general outlined the federal government’s evolution on what is considered sex discrimination.
“In 2006, the Department stated in litigation that Title VII’ s prohibition of discrimination based on sex did not cover discrimination based on transgender status or gender identity per se; the district court rejected that position” in the 2009 in Schroer v. Library of Congress, Holder wrote. Subsequently, the Office of Personnel Management announced in 2011 that the federal government’s policy of prohibiting sex discrimination in the workplace includes discrimination based on gender identity. The following year the Equal Employment Opportunity Commission (EEOC) ruled in Macy v. Holder that discrimination on the basis of gender identity is discrimination on the basis of sex. Holder also noted President Barack Obama’s executive actions earlier this year prohibiting discrimination on the basis of gender identity by both the federal government and federal contractors.
“This memorandum is not intended to otherwise prescribe the course of litigation or defenses that should be raised in any particular employment discrimination case. The application of Title VII to any given case will necessarily turn on the specific facts at hand,” Holder continued. “My hope, however, is that this clarification of the Department’s position will foster consistent treatment of claimants throughout the government, in furtherance of this Department’s commitment to fair and impartial justice for all Americans.”
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