DOJ Rescinds Obama-Era Title VII Transgender Worker Protections
Demonstrating once again the Trump administration is no ally to the LGBTQ community, Attorney General Jeff Sessions rescinded the Obama administration policy stating Title VII of the Civil Rights Act protects transgender people from workplace discrimination. The move to remove protections takes action again then-Attorney General Eric Holder’s 2014 policy memo clarifying the Department of Justice viewed transgender discrimination as a form of sex discrimination.
That memo stated in part:
“I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination ‘because of … sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”
Buzzfeed first reported on the Sessions DOJ action against the transgender community:
Sessions’ directive, obtained by BuzzFeed News, says, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”
It adds that the government will take this position in pending and future matters, which could have far-reaching implications across the federal government and may result in the Justice Department fighting against transgender workers in court.
“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” Sessions writes. “This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”
This contradicts a decade of case law and jurisprudence, however.
But Sharon McGowan, a former lawyer in the Justice Department’s Civil Rights Division and now an attorney for the LGBT group Lambda Legal, countered that Sessions is ignoring a widespread trend in federal courts.
“It’s ironic for them to say this is law, and not policy,” McGowan told BuzzFeed News. “The memo is devoid of discussion of the way case law has been developing in this area for the last few years. It demonstrates that this memo is not actually a reflection of the law as it is — it’s a reflection of what the DOJ wishes the law were.”
“The sessions DOJ is trying to roll back the clock and pretend that the progress of the last decade hasnt’ happened,” she added. “The Justice Department is actually getting back in the business of making anti-transgender law in court.”
This week’s attack on transgender non-discrimination protections follows a similar attack in July when the Department of Justice – unsolicited – submitted a hostile amicus brief in a case about Civil Rights Act Title VII protections in where the plaintiff argued LGBTQ workers are covered by the longstanding federal rights law.
It should be noted that on top of not having their opinion solicited in that case, the DOJ is actually opposing another federal agency in taking the position LGBTQ people can be fired based on their sexual orientation.
They followed that brief up with arguments last week that Title VII doesn’t protect an LGBTQ person from being fired from a private industry employer.
In a statement on the Trump administration’s latest assault on LGBTQ rights, DOJ spokesperson Devin O’Malley said:
“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.”
It should be noted that being transgender is a matter of gender identity, not sexual orientation. That members of the Trump administration Department of Justice can’t (or won’t) see a distinction as they systematically strip away rights the courts have increasingly recognized over the last decade is more than telling; it’s abhorrent.
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