Attorney General Jeff Sessions, in a letter to all U.S. attorneys and the heads of all federal agencies, had advised that while Title VII provides various protections to transgender individuals, it “does not prohibit discrimination based on gender identity per se, including transgender status.” Sessions noted: “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.”

Accordingly, Sessions advised that the DOJ “will take that position in all pending and future matters” except where controlling lower court precedent is to the contrary. Even then, he noted the issue should be preserved for possible review. It should be kept in mind that the DOJ’s position, as set forth in Sessions’ letter, is contrary to the Equal Employment Opportunity Commission’s position on the matter.

According to Sessions, the DOJ’s decision was premised at least in part on the fact that Title VII does not mention gender identity as a protected category. Sessions also noted that the DOJ will continue to enforce the Hate Crimes Prevention Act and the Violence Against Women Reauthorization Act, each of which—unlike Title VII—include gender identity as a protected category.