Last week, Attorney General Jeff Sessions issued a memo to U.S. attorneys directing them to take the position that civil rights laws about sex discrimination do not apply to transgender people.
In doing so, Sessions reversed a 2014 directive by former Attorney General Eric Holder. Holder’s order required the department to take the position that gender identity was included under the protections of Title VII of the Civil Rights Act of 1964.
Sessions’ memo read, in part:
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. The sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation, or employer action. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.
Title VII expressly prohibits discrimination “because of . . . sex” and several other protected traits, but it does not refer to gender identity. “Sex” is ordinarily defined to mean biologically male or female.
“Mr. Sessions’s move means the Justice Department will no longer side with transgender plaintiffs in workplace discrimination lawsuits invoking the Civil Rights Act,” wrote Charlie Savage at The New York Times. “It will either stay on the sidelines or tell courts that the law should not be interpreted as banning discrimination by the employers.”
Savage noted that this new stance will place the DOJ at odds with the Equal Employment Opportunity Commission. Many commentators noted that it also puts the department in conflict with the courts, which have increasingly decided in favor of transgender plaintiffs.
“Today marks another low point for a Department of Justice, which has been cruelly consistent in its hostility towards the LGBT community and in particular its inability to treat transgender people with basic dignity and respect,” said James Esseks, director of the ACLU’s LGBT & HIV Project, in a statement reported by CBS News.
“This Department of Justice under Jeff Sessions has time and time again made it clear that its explicit agenda is to attack and undermine the civil rights of our most vulnerable communities, rather than standing up for them as they should be doing,” Esseks continued. “Discrimination against transgender people is sex discrimination, just as DOJ recognized years ago. We are confident that the courts will continue to agree and will reject the politically driven decision by Attorney General Sessions.”
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