In Shift, Justice Dept. Says Law Doesn’t Bar Transgender Discrimination

Tne New York TImes Charlie Savage
October 5, 2017

Attorney General Jeff Sessions on Thursday ordered the Justice Department to take the position in court cases that transgender people are not protected by a civil rights law that bans workplace discrimination based on sex. The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.

The dispute centers on how to interpret employment protections based on sex ” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view sex ” as encompassing gender identity, extending protections to transgender people.

But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word sex ” in the statute, Mr. Sessions said, means only biologically male or female, ” so the Civil Rights Act does not ban discrimination based on gender identity per se, including transgender status. ”

He added that the department will take that position in all pending and future matters, ” except in cases in which a controlling lower-court precedent dictated otherwise, in which case it would reserve the option to revisit the issue on appeal.

The policy change comes as the Justice Department is trying to get out of an employment discrimination lawsuit in Oklahoma that it filed alongside a transgender plaintiff, noted David Lopez, a former general counsel to the Equal Employment Opportunity Commission. A judge appointed by President George W. Bush had previously ruled in that lawsuit that the Civil Rights Act does cover gender identity, agreeing with the department’s Obama-era interpretation.

Federal appeals courts have reached varying views on whether the Civil Rights Act’s ban on sex discrimination extends to gender identity, but five circuits have ruled that it does, said James D. Esseks, the director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & HIV Project.

Mr. Sessions’s move means the Justice Department will no longer side with transgender plaintiffs in workplace discrimination lawsuits invoking the Civil Rights Act. It will either stay on the sidelines or tell courts that the law should not be interpreted as banning discrimination by the employers.

That position is not just a reversal from the Obama-era stance, but it would also put the Justice Department at odds with the view of the Equal Employment Opportunity Commission, another part of the federal government that deals with discrimination in the workplace.

Jeff Sessions’s D.O.J. has made it its mission to oppose, rather than enforce, civil rights law, ” said Sharon McGowan, a former Justice Department civil rights lawyer who is the director of strategy for Lambda Legal, which advocates civil rights for lesbian, gay, bisexual and transgender people. But no matter how many memos he issues, the law is on our side. And so are the courts increasingly. ”

Mr. Sessions’s move came three months after the Justice Department, without being asked for its opinion, filed a brief before an appellate court in a private workplace discrimination lawsuit, taking the position that the Civil Rights Act’s ban on sex bias does not cover sexual orientation.

While that move was also greeted with dismay by civil rights advocates, it was less of a reversal than Mr. Sessions’s memo on Thursday, because the Obama administration never took the position that the bar to sex ” discrimination should be interpreted as extending to sexual orientation. Instead, it tried to avoid the question, while welcoming the prospect that the law might continue to evolve ” in that area.

The Supreme Court has not resolved the question of whether sex ” can mean sexual orientation or gender identity. But in a 1989 case, Price Waterhouse v. Hopkins, the Supreme Court ruled that the ban on sex ” discrimination does encompass discrimination against people who fail to conform to gender stereotypes. That case involved a woman who was deemed insufficiently feminine, not a transgender person.

Mr. Sessions’s policy directive was the latest in a series of steps the Justice Department has taken since he became attorney general to curtail the reach of civil rights laws. On his watch, the Civil Rights Division has also changed its position on whether Texas’ strict voter identification law was discriminatory, pulled back from using consent decrees to reform troubled police departments, and began a project to scrutinize affirmative action practices in university admissions.

It’s striking to see the Justice Department argue again and again to take civil rights protections away from people, ” Mr. Esseks said. When else have they reached out affirmatively, not because they are involved in a case, to say, “We think the world is a better place if civil rights laws don’t cover this community?’ ”

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