18 Oct U.S. Justice Department Takes Aim at Workplace Protections for Transgender Individuals

Recently on October 4, United States Attorney General Jefferson Beauregard Sessions issued a Memorandum instructing the Justice Department to take the position that Federal law does not protect transgender individuals from workplace discrimination on the basis of sex under Title VII of the Civil Rights Act. The Memo specifies that the Justice Department will take this position “in all pending and future matters,” indicating that this policy will have a wide-ranging effect.

The Memo is the latest refutation of the Obama Administration’s approach to civil rights enforcement, which sought to broaden the scope of protection under Federal law. It expressly reverses former Attorney General Eric H. Holder Jr.’s December 2014 Memo, which interpreted Title VII’s definition of “sex”, for purposes of protection from discrimination to “encompass[s] discrimination based on gender identity, including transgender status.”

In his Memo, Attorney General Sessions notes that, although Federal law provides various protections to transgender individuals, “it does not prohibit discrimination based on gender identity per se,” but only discrimination between men and women, and that, “[a]s a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.” The Memo did clarify that its position was based on “a conclusion of law, not policy,” and that it was not meant to condone mistreatment of transgender individuals nor undermine “the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII,” which it pledges to vigorously enforce.

The clear implication of the Memo is that the Department of Justice will either tell courts that the law should not be interpreted as banning discrimination by the employers or not do anything at all to advocate for transgender Plaintiffs. Either approach would be at odds with five different Federal Appellate Circuits, which have held that Title VII’s ban on sex discrimination extends to gender identity. The Memo would also be at odds with the Equal Employment Opportunity Commission, which has interpreted Title VII more broadly to prohibit discrimination on the basis of sexual orientation and gender identity, including a lawsuit filed last month against A&E Tire for alleged sex-based discrimination under Title VII against a transgender job applicant. It bears saying, however, that President Trump has nominated attorney Janet Dhillon and former policy adviser to the Bush Administration Daniel Gade to the EEOC, both of whom are expected to change the EEOC’s position on this issue after their confirmation next week.

While the Memo does set the policy of the Department of Justice, it does not set binding legal precedent. Clients are advised to take a wait-and-see-approach until, if and when the Supreme Court settles this issue, before doing things like revising employee handbooks or policies to include or remove protection for transgender employees. However, care must be paid to whether the specific State in which the employer does business already considers gender identity a protected category. At present, 19 different States and the District of Columbia already bar employment discrimination on the basis of gender identity.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

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