On October 4, 2017, U.S. Attorney General Jeff Sessions issued a memorandum announcing the U.S. Justice Department’s (DOJ) new stance that transgender employees aren’t protected from discrimination under federal law. The announcement reflects a reversal from the Obama administration’s interpretation of the law and runs counter to federal court decisions and other federal agencies’ interpretations.
Title VII’s prohibition on sex discrimination
In 1989, the U.S. Supreme Court held in Price Waterhouse v. Hopkins that the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 also includes discrimination based on an employee’s nonadherence to gender stereotypes or expectations (i.e., that women appear or act “feminine” and men appear or act “masculine”).
In recent years, federal courts have interpreted Title VII to also prohibit discrimination based on sexual orientation. For example, if an employer denies a woman a promotion because she forms intimate relationships with another woman instead of a man, her employer is discriminating against her because she didn’t meet the stereotypical expectations of being female. The 7th Circuit adopted this reasoning last April when it held that sexual orientation discrimination is sex-based discrimination under Title VII.
Although courts are increasingly accepting the notion that discrimination based on sexual orientation is prohibited under Title VII, they haven’t uniformly extended Title VII’s sex discrimination protections to cover gender identity. Proponents argue that if a woman is denied a promotion because she is transgender, then that adverse action was taken because of her failure to “conform” to her anatomical gender or her failure to meet the stereotyped expectations for a woman. Nevada and New York federal courts have accepted this argument, but federal courts in Maryland and Colorado have expressed skepticism.
The 7th Circuit held last May that Title IX (applicable to most educational institutions) is violated when a school requires students to use only the bathroom corresponding to their anatomical gender. It hasn’t yet had the opportunity to address the same issue in a Title VII case, which leaves Indiana employers without clear guidance about whether gender identity is a protected characteristic under Title VII.
During the Obama presidency, four federal agencies—the DOJ, the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the Office of Federal Contract Compliance Programs (OFCCP)—endorsed the position that Title VII also prohibits discrimination against transgender individuals. This interpretation specifically included the right to use a bathroom or locker room corresponding to one’s gender identity as opposed to his or her anatomical gender.
The DOJ and the U.S. Department of Education (DOE) adopted the same interpretation of Title IX under the Obama administration, but both departments rescinded their guidance earlier this year. OSHA, the EEOC, and the OFCCP have not (as of yet) reversed course. In fact, in April, EEOC Acting Chair Victoria Lipnic said the agency would continue processing gender bias charges brought by transgender workers, including charges in regard to bathroom access.
Attorney General Sessions’ memo announcing the DOJ’s about-face from its previous position was clear: “Title VII does not prohibit discrimination based on gender identity, per se. This is a conclusion of law, not policy.” The announcement was made based on the department’s belief that treating discrimination based on gender identity as sex discrimination would impermissibly expand Title VII beyond what Congress has authorized.
In support of the DOJ’s position, Sessions specifically referenced the dissenting opinion from the 7th Circuit’s Hively case, which states in part that the dictionary definition of “sex” means biologically male or female and nothing more. However, the Hively case didn’t involve transgender discrimination, and the dissenting opinion Sessions cited doesn’t represent the majority opinion and therefore has no force of law.
Much media attention has been given to the memo, and some commentators have overstated its impact. The DOJ doesn’t directly enforce Title VII or police employers’ compliance with it—those are the responsibilities of the EEOC. In fact, the DOJ’s opinion directly contradicts the EEOC’s interpretation that Title VII’s prohibition on sex discrimination includes transgender status and sexual orientation.
The significance of the DOJ in the employment arena is that it has the authority to litigate cases on behalf of the United States, as well as file amicus (friend of the court) briefs in cases in which the federal government isn’t a party but wishes to express its view over a matter, including cases involving employment discrimination. The memo states that the DOJ will now take the position in “all pending and future matters” in which it is involved that Title VII doesn’t encompass discrimination based on gender identity. Thus, despite the fact that the department has previously joined in lawsuits arguing gender identity is protected under Title VII, it could now participate in cases arguing the exact opposite.
The DOJ can also withdraw from current litigation that it has previously supported. For instance, in 2015, it joined a transgender professor suing her state university employer over discrimination based on her gender identity. The professor, with the support of the DOJ, had pursued the case for over two years. But less than one week before Sessions issued his Memo, the department asked the court to dismiss it from the litigation, leaving the professor on her own to finish her fight. A decision on the DOJ’s request to abandon the litigation is expected in the coming months.
Sessions’ memo focuses on gender identity, not sexual orientation. However, there appears to be some inconsistency at the DOJ about its position. The memo says nothing about sexual orientation discrimination. However, after it was issued, a DOJ spokesperson said the department “will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation.”
This is puzzling, though, because the DOJ took the opposite position last July in a case involving a skydiving instructor who had been fired after a customer complained about his sexuality. In that case, the DOJ argued that sexual orientation discrimination is not prohibited and any “efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” Thus, whether the DOJ believes sexual orientation is a prohibited form of sex discrimination is an open question.
For employers not involved in DOJ litigation or in lawsuits where the DOJ has filed an amicus brief, the day-to-day impact of the memo is minor. However, the move could be a predictor of what other agencies may do under the current administration.
Although the memo conveys the DOJ’s opinion that gender identity discrimination isn’t prohibited under Title VII as a “conclusion of law, not policy,” it’s important to note that the department’s stance doesn’t reverse other federal agency guidance or various court decisions that hold the opposite. Currently, the EEOC’s position remains that Title VII’s prohibition on sex discrimination protects against discrimination based on sexual orientation and gender identity, despite the DOJ’s contrary opinion.
In addition, federal contractors and subcontractors are still covered by OFCCP guidance that states transgender and sexual orientation discrimination is prohibited, and OSHA’s guidance concerning bathroom and locker room access remains in effect. In addition, the DOJ’s new interpretation doesn’t overturn previous court decisions expanding Title VII’s protections to sexual orientation or gender identity—including the 7th Circuit decisions described above.
Although courts (and now, federal agencies) disagree on the parameters of Title VII, employers can at least agree they don’t want to get caught in the crosshairs. You should pay close attention to the latest developments and changes in the law. Remember that although federal protections may be in a state of flux, these changes don’t affect various state and local laws extending protections beyond federal law.
The surest way to minimize risk is to treat sexual orientation and transgender status as protected categories, even when not required by law. This may mean taking another look at nondiscrimination/harassment policies and considering whether training is needed for employees and supervisors.
Angela is an attorney with Faegre Baker Daniels LLP . If you have questions about Title VII, or any other employment concern, contact the author at firstname.lastname@example.org or any of Faegre Baker Daniels’ labor and employment attorneys.