WASHINGTON — More than two years after the issue was first raised, the Labor Department on Tuesday announced it "will issue guidance to make clear that discrimination on the basis of transgender status is discrimination based on sex."
The decision follows the Equal Employment Opportunity Commission's 2012 decision that sex discrimination prohibited under Title VII of the Civil Rights Act includes discrimination based on transgender status.
Since then, however, the Labor Department had refused to say whether it was applying the ruling in Mia Macy's EEOC case to its own enforcement of the current executive order banning federal contractors from discriminating on the basis of, among other factors, sex. After the department avoided answering or even being questioned about the issue, Labor Secretary Tom Perez said earlier this year that the issue was under review.
Perez announced in a blog post Tuesday, however, that the Labor Department's Office of Federal Contract Compliance Programs is responsible for enforcing Executive Order 11246, and it will now be issuing the guidance.
"[W]e are updating enforcement protocols and anti-discrimination guidance to clarify that we provide the full protection of the federal non-discrimination laws that we enforce to transgender individuals," Perez wrote.
In substance, he then explained:
These changes reflect current law. In Macy v. Holder, for example, the Equal Employment Opportunity Commission concluded that discrimination because a person is transgender is sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Office of Federal Contract Compliance Programs and Civil Rights Center, along with the Employment and Training Administration, will issue guidance to make clear that discrimination on the basis of transgender status is discrimination based on sex. While the department has long protected employees from sex-based discrimination, its guidance to workers and employers will explicitly clarify that this includes workers who identify as transgender. The department will continue to examine its programs to identify additional opportunities to extend the law's full protection against discrimination to transgender workers.
The announcement came a day after President Obama announced that he had directed his staff to prepare an executive order to ban gender identity-based discrimination in federal employment. It also follows the June 16 announcement from the White House that Obama had asked for an executive order to be drafted that would provide explicit protections to federal contractors from discrimination on the basis of sexual orientation or gender identity.