U.S. Attorney General: Transgender Employees Not Protected Under Title VII

Lev Craig

On October 5, 2017, U.S. Attorney General Jeff Sessions issued a memo to the heads of all federal government agencies and all U.S. attorneys, stating that the U.S. Department of Justice (DOJ) is now taking the position that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of gender identity or transgender status. The memo reverses the DOJ’s previous stance on the issue and runs contrary to the position taken by the Equal Employment Opportunity Commission (EEOC), as well as various federal appellate and district courts.

While Title VII explicitly prohibits discrimination on the basis of sex, there has been heated debate in recent years over whether that prohibition includes discrimination against transgender workers. The status of legal protections for transgender employees is complicated: no federal law explicitly forbids discrimination against transgender people in the workplace, state and city employment protections vary widely, and the U.S. Supreme Court has yet to address the question of whether Title VII covers gender identity­–based discrimination. The EEOC views discrimination against transgender people as discrimination based on sex and therefore a violation of Title VII, but the EEOC’s interpretations of Title VII are not legally binding, and federal appellate and district courts have differed in their applications of the statute to transgender workers.

Until last week, the DOJ’s position on Title VII’s applicability to transgender people was consistent with that of the EEOC. Under the Obama administration, in December 2014, former U.S. Attorney General Eric Holder issued a DOJ memo stating that Title VII’s prohibition against sex discrimination encompassed discrimination on the basis of gender identity, as such discrimination unlawfully takes into account “sex-based considerations.” Last week’s memo, however, reverses that position. Sessions characterized the reversal as “a conclusion of law, not policy,” stating that, while Title VII “expressly prohibits discrimination ‘because of…sex,’” it does not prohibit discrimination “based on gender identity per se because the statute “does not refer to gender identity” explicitly. Sessions justified this distinction by claiming that the word “sex” is “ordinarily defined to mean biologically male or female,” and stated that, under the DOJ’s new interpretation, transgender people are covered by Title VII if they are discriminated against based on whether they are “biologically male or female,” but not if they are discriminated against specifically because they are transgender.

It remains unclear how this “biological sex” standard would actually be applied, however, as the DOJ’s memo gives no further guidance as to what this distinction would look like in practice or how it intends to define a transgender person’s “biological sex.” For example, under this framework, would a transgender man who has undergone gender reassignment surgery and hormone replacement therapy would be categorized as biologically female, based on his sex assigned at birth, or biologically male, based on his having typically male sex characteristics? If a company enacted a discriminatory policy which disadvantaged all female employees, whether they were transgender or not, would the claims of transgender women be barred because the DOJ views them as “biologically male”—even if they were subjected to discrimination because they are women?

Sessions added near the end of the memo that the DOJ’s new position “should not be construed to condone mistreatment on the basis of gender identity.” Similarly, shortly after the memo was released, DOJ representative Devin O’Malley said in a statement that the DOJ “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.” However, it’s difficult to see the DOJ’s explicit revocation of federal employment protections for transgender people as anything other than condoning mistreatment—and it’s also unclear which “numerous laws” O’Malley is referring to, as there are currently no federal laws prohibiting discrimination based on sexual orientation or gender identity in the workplace. O’Malley’s statement also reveals a fundamental misunderstanding of the issue at hand by referring to “sexual orientation,” a protected characteristic which is distinct from gender identity and subject to different case law.

Transgender employees in New York are protected by state and city anti-discrimination laws. If your employer has discriminated against you because of your gender identity, contact The Harman Firm, LLP.