Late last month the Trump administration’s Jeff Sessions issued a memo stating Title VII of the Civil Rights Act of 1964 (Title VII) does not per se protect workers against gender identity discrimination – including transgender individuals – according to a recent article written by Above the Law. The memo, which is directed at all U.S. Attorneys and heads of federal agencies, explains the Department of Justice’s (DOJ) position is that the term “sex,” as used in Title VII, refers only to biologically male or female. The effect of the memo is that the DOJ will take this position in all pending and future matters on the issue. The exception is where lower-court precedent dictates otherwise.
The memo reverses the DOJ’s 2014 policy that directly contradicts the administration’s current position. Then-Attorney General Eric Holder noted in his 2014 memo that the term “sex” in Title VII extending to claims of discrimination based on a person’s gender identity. His memo expressly noted transgender status was included under the law. The current administration’s position is that Holder’s memo expanded the law beyond what Congress had provided.
Session’s memo came right after president Trump announced transgender individuals would be prohibited from serving in the military. Most recently, the DOJ sided with a baker from Colorado who had a pending case against him when he refused to bake a wedding cake for a same-sex couple asserting it was against his religious beliefs. The DOJ took a contrary position to the Equal Employment Opportunity Commission (EEOC), which is tasked with enforcing Title VII, in the U.S. Court of Appeals for the Second Circuit in a case where a skydiver claimed he was fired by his employer because of his sexual orientation. The DOJ and EEOC filed amicus briefs as to whether sexual orientation should be considered sex discrimination under Title VII.
The EEOC recently filed a case against a Denver company over alleged discrimination against a potential candidate on the basis of transgender status. As of now, the only federal appellate court holding workplace discrimination based on sexual orientation violates Title VII is the Seventh Circuit. It is not clear whether this issue and the DOJ and EEOC’s opposing positions will go before the Supreme Court of the United States.
If you or someone you know believes they have been discriminated against because of gender or is a victim of any other type of discrimination, contact a seasoned workplace discrimination attorney today.