The Department of Justice (DOJ) announced last Wednesday that it no longer considers discrimination based on gender identity to be prohibited by Title VII of the Civil Rights Act of 1964. This is a dramatic rebuke to the position taken by the Obama Administration.
The Obama DOJ aggressively asserted that Title VII prohibits discrimination based on gender identity, as such discrimination is a form of discrimination based on sex. In a memo issued this week, Attorney General Jeff Sessions disavowed that position, stating that the DOJ “must interpret Title VII as written by Congress,” which means that it will not read into the statute any prohibition on discrimination based on gender identity. Title VII prohibits discrimination, among other things, on the basis of “sex,” but nowhere does it mention gender identity. The memo formally withdrew a 2014 memo by then-Attorney General Eric Holder advocating the opposite position.
While the DOJ’s position is not surprising, as it recently filed a brief in a sexual orientation discrimination case making similar arguments, it marks a pretty dramatic change in policy from that promulgated over the past few years. During the Obama Administration’s second term, the Equal Employment Opportunity Commission, the federal agency in charge of enforcing federal employment laws, aggressively pushed the position that Title VII prohibits discrimination based on sexual orientation and gender identity. In July 2015, the EEOC held that the term “sex” in Title VII includes a prohibition against sexual orientation discrimination. This set off a series of lawsuits seeking to have courts recognize this definition of sex. Earlier this year, one appellate court did, adopting the position that Title VII prohibits sexual orientation and gender identity discrimination.
It is not clear how the DOJ’s change in position will influence the courts. Most had proven reluctant to acknowledge the EEOC’s expansive definition of Title VII, so there might not be a significant change. In many states, including Illinois, the question of whether federal law prohibits gender identity discrimination is largely an academic one, as state law prohibits transgender discrimination.
Stay tuned to our blog for updates on the rapidly developing area of law that applies to transgender employees. Also, contact me if you have specific questions about transgender employees. If you have yet to develop a transgender employee policy, I think it is worth doing so, and I can help you do that.