On October 5, 2017, Attorney General Jeff Sessions released a formal letter on behalf of the United States Department of Justice stating the DOJ’s official position that Title VII “does not prohibit discrimination based on gender identity per se, including transgender status,” officially retracting the DOJ’s previous position under the Obama Administration and setting up a direct conflict with the EEOC’s current position on the scope of Title VII.
Sessions’s letter comes amid growing confusion as to whether “sexual orientation” and “gender identity” are protected under Title VII. As we previously reported, several circuit courts are reevaluating their stance on the viability of sexual orientation claims under Title VII. In April, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation. Following on its heels, the Second Circuit also granted a request for the full court to decide the issue, with arguments scheduled for later this fall.
Sessions’s October 5 letter was not the Trump Administration’s first official statement on these issues. In July, the DOJ filed an amicus brief in the Second Circuit case, arguing that sexual orientation was not a protected category under Title VII.
This continues to be a developing area of the law and is likely to be ultimately resolved by the United States Supreme Court. Employers should continue to monitor developments in this area and be prepared to revise their policies and practices accordingly.