In a two-page memorandum letter sent to all Federal agencies on October 4, 2017, Attorney General Jeff Sessions announced the federal government’s position that Title VII does not “per se” protect transgender individuals from sex discrimination.
The text of Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, or national origin. Under the Obama Administration, the federal government took the view that the law’s reference to “sex” also encompassed gender identity and transgender status, and thus, that Title VII protected transgender individuals from such discrimination. Attorney General Sessions’ memorandum unequivocally reverses that position, announcing the Department of Justice’s (“DOJ”) new stance that “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.”
Notably, AG Sessions’ memorandum pits the DOJ’s new position on transgender individuals at odds with the Federal Equal Employment Opportunity Commission’s (“EEOC”). Presently, the EEOC treats discrimination based on gender identity or transgender status to be protected under Title VII. It is unclear at the moment how—or if—the EEOC will implement AG Sessions’ memorandum. Just days before the memorandum, the EEOC filed suit against a Denver-based tire company, accusing the company of sex discrimination against a transgender man. Additionally, other federal courts have suggested that Title VII does extend protections for transgender individuals—including federal courts in New York.
Further, although AG Sessions’ memorandum signals a presumptive change in the federal government’s interpretation of the bounds of Title VII’s protections, it does not affect New York state’s laws pertaining to transgender individuals. In New York, state laws encompass and protect transgender individuals from discrimination. The New York Human Rights Law, which is essentially the state equivalent of Title VII, explicitly provides in its regulations that “harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.” Similarly, New York State Attorney General Eric Schneiderman and the State Commissioner of Education MaryEllen Elia announced earlier this year that the state’s Dignity for All Students Act “expressly requires all school districts in New York to prohibit discrimination and harassment, on school property or at a school function, on the basis of a student’s gender identity or expression,” which could extend to a student’s transgender status.
In short, despite AG Sessions’ new directive, employers and school districts across New York state should remain aware that state agencies will continue to extend discrimination protection to transgender individuals under the State Human Rights Law and Education Law, as the case may be.