Justice Department reverses policy that protected transgender people from workplace discrimination

Violet Powell
October 6, 2017

Attorney General Jeff Sessions has reversed the federal government's stance that gender identity is protected as part of Title VII's prohibition against sex discrimination, saying in a letter obtained by Law360 on Thursday that the statute does not cover bias based on transgender status.

"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", Sessions reportedly wrote.

According to a memo dated Wednesday that was obtained by BuzzFeed, Sessions has instructed USA attorneys and the heads of federal agencies to stop interpreting Title VII of the Civil Rights Act of 1964 as a protection on the basis of gender identity.

As Buzzfeed News' Dominic Holden first reported, Sessions on Wednesday rescinded that government policy. "As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress", he wrote.

Gender identity is different from sexual orientation.

The US Department of Justice is taking the position that the federal law banning sex discrimination in the workplace does not apply to transgender employees.

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DOJ spokesperson Devin O'Malley defended the decision, asserting that Sessions was restoring Title VII back to congressional interpretation.

Several federal appeals courts have already ruled that discriminating against transgender people based on their gender identity is a violation of federal law.

"Unfortunately, the last administration abandoned that fundamental principle, which necessitated [the] action", the statement continued.

As BuzzFeed News highlights, the contention is "how broadly the government interprets" the 1964 act, which prohibits discrimination on the basis of sex and does not specifically denote LGBTQ rights; in other words, it's an argument of semantics. "This department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation".

"The Sessions DOJ is trying to roll back the clock and pretend that the progress of the last decade hasn't happened", McGowan added. While the Obama administration prohibited employers from discriminating against transgender employees under Title VII of the Civil Rights Act, Sessions has ordered for the provision to no longer apply to gender identity. So, the DOJ explanation has nothing to do with protecting transgender people.

Rights groups and legal experts quickly refuted Sessions' analysis and expressed concerns that the memo would lead the members of the department to shirk their duty to protect workers from discrimination.

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