US Attorney General Jeff Sessions has reversed a federal government policy that said transgender workers were protected from discrimination under a 1964 civil rights law, according to a memo on Wednesday sent to agency heads and US attorneys.
Sessions’ directive, obtained by BuzzFeed News, says, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”
It adds that the government will take this position in pending and future matters, which could have far-reaching implications across the federal government and may result in the Justice Department fighting against transgender workers in court.
“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” Sessions writes. “This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress."
But Sharon McGowan, a former lawyer in the Justice Department's Civil Rights Division and now an attorney for the LGBT group Lambda Legal, countered that Sessions is ignoring a widespread trend in federal courts.
"It's ironic for them to say this is law, and not policy," McGowan told BuzzFeed News. "The memo is devoid of discussion of the way case law has been developing in this area for the last few years. It demonstrates that this memo is not actually a reflection of the law as it is — it's a reflection of what the DOJ wishes the law were."
"The sessions DOJ is trying to roll back the clock and pretend that the progress of the last decade hasnt' happened," she added. "The Justice Department is actually getting back in the business of making anti-transgender law in court."
The memo reflects the Justice Department's aggression toward LGBT rights under President Trump and Sessions, who reversed Obama-era guidance that protects transgender students after a few weeks in office. Last month, Sessions filed a brief at the Supreme Court in favor of a Christian baker who refused a wedding cake to a gay couple. And last week, the department argued in court that Title VII doesn't protect a gay worker from discrimination, showing that Sessions will take his view on Title VII into private employment disputes.
At issue in the latest policy is how broadly the government interprets Title VII of the Civil Rights Act of 1964, which does not address LGBT rights directly. Rather, it prohibits discrimination on the basis of sex.
But the Equal Employment Opportunity Commission, an independent agency that enforces civil rights law in the workplace, and a growing body of federal court decisions have found sex discrimination does include discrimination on the basis of gender identity and sex stereotyping — and that Title VII therefore bans anti-transgender discrimination as well.
Embracing that trend, former attorney general Eric Holder under President Obama announced the Justice Department would take that position as well, issuing a memo in 2014 that said, “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.”
But Sessions said in his latest policy that he “withdraws the December 15, 2014, memorandum,” and adds his narrower view that the law only covers discrimination between “men and women.”
“The Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential future review),” Sessions writes.
Sessions adds: “The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.”
Devin O’Malley, a spokesperson for the Justice Department, explained the decision to issue the memo, telling BuzzFeed News, “The Department of Justice cannot expand the law beyond what Congress has provided. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today's action. This Department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation."
McGowan, from Lambda Legal, counters, "The memo is so weak and that analyis is so thin, that courts will recognize it for what it is — a raw political document and not sound legal anylsis that should be given any weight by them."