by Tammy Binford
U.S. Attorney General Jeff Sessions’ announcement changing his department’s position on transgender employment discrimination marks a change in the legal landscape, but it doesn’t alter employer obligations under various state and local laws or the position taken by other federal agencies.
In an October 4 memo to U.S. attorneys titled “Revised Treatment of Transgender Employment Discrimination Claims,” Sessions says the U.S. Department of Justice (DOJ) will take the position that Title VII of the Civil Rights Act of 1964 does not encompass discrimination based on gender identity “in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).”
“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” the memo states. “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.”
James P. Reidy, an attorney with Sheehan Phinney Bass & Green PA in Manchester, New Hampshire, and the editor of New Hampshire Employment Law Letter, points out that most employers covered by Title VII also are covered by state discrimination laws, and several states include gender identity or are considering including it as a protected classification.
Reidy also says that the DOJ position doesn’t necessarily affect the position taken by the Equal Employment Opportunity Commission (EEOC), which “has taken a different view looking to protect gender identity and transgender status.”
The Occupational Safety and Health Administration (OSHA) has taken a stance similar to the EEOC’s. In 2015, OSHA released guidance on best practices regarding restroom access for transgender workers.
Advice for employers
Even though the issue is evolving as courts and agencies wrestle with what the law requires, Reidy advises employers to not only comply with applicable laws “but also insist on respectful and civil behavior in the workplace.”
“Just because it may not yet be protected as a classification doesn’t mean discrimination or offensive conduct should be tolerated,” Reidy says. “I encourage employers to keep an open mind and open door.”
Sessions’ rationale
In his memo, Sessions says the new position overrules a memorandum from former Attorney General Eric Holder dated December 15, 2014, in which Holder concluded that Title VII does encompass discrimination based on gender identity. The Sessions memo says Holder took the view that Title VII prohibits employers from taking into account “sex-based considerations.”
In 2014, Holder wrote, “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.”
Sessions differs, stating in his memo that “Title VII expressly prohibits discrimination ‘because of . . . sex’ and several other protected traits, but it does not refer to gender identity.” He says “sex” is ordinarily defined to mean biologically male or female.
“Congress has confirmed this ordinary meaning by expressly prohibiting, in several other statutes, ‘gender identity’ discrimination, which Congress lists in addition to, rather than within, prohibitions on discrimination based on ‘sex’ or ‘gender,’” the Sessions memo states.