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Labor Department Isn't Protecting Trans Workers, Secretary Says Issue "Under Review"

Labor Secretary Tom Perez said the department is reviewing whether it will protect transgender employees of federal contractors from discrimination. Still unresolved after nearly two years.

Posted on February 12, 2014, at 3:06 p.m. ET

Larry Downing / Reuters

Secretary of Labour Thomas Perez speaks with the media.

WASHINGTON — The Labor Department is not protecting transgender employees of federal contractors from discrimination, according to comments from Labor Secretary Tom Perez, who instead said the issue is "under review."

Nearly two years after the Equal Employment Opportunity Commission found that "sex discrimination," which is banned under federal anti-discrimination law, includes discrimination against transgender people, Perez said his agency is still reviewing whether to apply those same protections to federal contractors.

After refusing to give access to BuzzFeed to question Perez at an event earlier this week, Perez made an unannounced visit to the White House briefing room on Wednesday, where he was asked about the issue by The Washington Blade.

"[T]hat issue is under review in the aftermath of the Macy decision. And I've asked my staff to expedite that review so that we can bring that issue to conclusion at the Department of Labor," he said.

The Macy decision is an April 2012 ruling by the EEOC that Title VII's sex discrimination ban includes gender identity-based discrimination against transgender people. Under the policies of the Labor Department's Office of Federal Contract Compliance Programs (OFCCP), it was expected that office would enforce an executive order that bans federal contractors from discriminating on the basis of sex, among other factors, to include a ban on gender identity-based discrimination.

Asked when the review — never previously mentioned by the department in repeated requests for information about the enforcement of the executive order — will come to an end, Perez said, "I'm hoping it will come to an end as soon as possible."

Although Perez's claim of an existing review goes further than the department has gone in prior requests for information, it was not immediately clear when the review began or what issues it had to consider. Back in May 2012, shortly after the Macy decision, UCLA's Williams Institute issued a report from three scholars — Nan D. Hunter, Christy Mallory, and Brad Sears — about the impact of Macy on the federal contractor executive order, Executive Order 11246.

They concluded that the OFCCP has an "explicit policy of interpreting" the executive order's nondiscrimination requirements consistent with Title VII's nondiscrimination requirements — including specifically noting that OFCCP has "followed EEOC regulations and guidance in enforcing" the executive order.

The head of OFCCP, Patricia Shiu, told BuzzFeed in December 2013 that her office "follows Title VII precedent in everything," yet would not say whether that meant the office was protecting trans workers under the executive order.

Labor officials have refused to say whether they are doing so in repeated requests made since shortly after the EEOC's Macy decision in 2012.

Both the EEOC and Justice Department — where Perez worked before becoming Labor secretary — have implemented the Macy ruling in their policies, and the Education Department applied the reasoning in the Macy decision to expand its enforcement of Title IX.

The Labor Department — despite its own policy guidance — had been silent until Wednesday, when Perez told reporters his department had not yet reached a decision on the issue.

Here's the exchange:

Q: On a related note, there's also been talk about implementing existing order -- Executive Order 11246, which prohibits discrimination on the basis of gender, and apply that to transgender workers to prohibit discrimination against them in the wake of Macy v. Holder. Will the Labor Department take that step?

SECRETARY PEREZ: That issue is under review in the aftermath of the Macy decision. And I've asked my staff to expedite that review so that we can bring that issue to conclusion at the Department of Labor.

Q: When will the review come to an end?

SECRETARY PEREZ: I'm hoping it will come to an end as soon as possible.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.