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Jeff Sessions Memo, Reversing Transgender Protections, Further Inflames Divisions

Law.com—Erin Mulvaney

U.S. Attorney General Jeff Sessions is reversing the U.S. Justice Department’s stance that transgender employees should be protected in the workplace, a move that clashes with federal appeals court decisions and another government agency’s interpretation of civil rights laws.

The Oct. 4 memo rejects the Obama administration’s interpretation that transgender workers, or gender identity, is protected under Title VII of the Civil Rights Act of 1964. That law protects workers on the basis of sex, among other protections such as race, national origin and religion.

The move further intensifies conflict between the Trump administration’s Justice Department and the U.S. Equal Employment Opportunity Commission, which has long held that Title VII protects gender identity, as well as sexual orientation. The new guidance could compel the Justice Department to switch litigation positions in pending cases.

David Lopez

“I can’t think of a flip flop so brazen,” said David Lopez, a Washington-based Outten & Golden partner and former EEOC general counsel. “This endangers the quality of opportunity for Americans to fight discrimination. It’s a brazenly political stance.”

The Justice Department said in its memo: “Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity, per se. This is a conclusion of law, not policy.”

It notes that while Title VII does protect against “sex” as a form of discrimination, it does not refer to gender identity and it should be limited to “biologically male or female.” It goes on to say that the government will take this position in pending and future matters. The Justice Department’s memo was first reported by Buzzfeed News.

In 2014, then-U.S. Attorney General Eric Holder Jr. issued guidance that said gender identity should be protected under Title VII. The EEOC, responsible for enforcing civil rights laws for private employers, has consistently held this view.

Federal appeals courts have ruled in recent years that gender identity is protected as sex discrimination in the workplace, said Greg Nevins, workplace fairness program strategist at the advocacy group Lambda Legal.

“It’s pretty plain now that they are taking on the LGBT community, irrespective of legal merit,” said Nevins, who has represented two clients in recent circuit cases involving sexual orientation protections. He called the Justice Department guidance “bad lawyering.”

A DOJ spokesperson, Devin O’Malley, said in a statement Thursday: “The Department of Justice cannot expand the law beyond what Congress has provided. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action. 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.”

Two recent federal appeals court rulings addressed sexual orientation discrimination protection under Title VII. The argument that gay workers should be protected against sex discrimination is a distinct from gender identity and protections for transgender workers. The argument that transgender workers are protected under Title VII has prevailed in at least four circuits.

The full U.S. Court of Appeals for the Seventh Circuit in April said sexual orientation should be protection under “sex.” But a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit took the opposite view.

Lambda Legal petitioned the Supreme Court to take up the Eleventh Circuit dispute. In that case, Jameka Evans claimed her employer, Georgia Regional Hospital, discriminated against her for gender nonconformity and sexual orientation.

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