Why it matters

Attorney General Jeff Sessions released a memorandum officially reversing the prior position of the Department of Justice (DOJ) in its application of Title VII’s protections to claims of discrimination based on an individual’s gender identity. In 2014, then-Attorney General Eric Holder published a memo clarifying that Title VII’s protections against discrimination include gender identity such as transgender status, aligning the DOJ with the Equal Employment Opportunity Commission (EEOC). Sessions withdrew the 2014 memo and replaced it with a new position. “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,” Sessions wrote to all the U.S. Attorneys. Going forward, the DOJ will adopt this position except in cases where lower-court controlling precedent dictates otherwise; in those cases, the issue will be preserved for potential review, Sessions said. Given the EEOC’s contrary position on Title VII, the DOJ’s reversal leaves employers with some serious uncertainty.

Detailed discussion

Attorney General Jeff Sessions is taking the Department of Justice (DOJ) in a different direction with a new memorandum titled “Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964.”

Sessions revoked a 2014 memorandum published by prior Attorney General Eric Holder that brought the DOJ in line with the Equal Employment Opportunity Commission, recognizing that Title VII’s prohibition on discrimination against individuals “because of such … individual’s sex” includes gender identity such as transgender status.

While noting that nothing in his memo “should be construed to condone mistreatment on the basis of gender identity,” Sessions said Title VII does not refer to gender identity and “sex” is ordinarily defined to mean biologically male or female.

“Although Title VII bars ‘sex stereotypes’ insofar as that particular sort of ‘sex-based consideration[]’ causes ‘disparate treatment of men and women,’ Title VII is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex,” he wrote.

Congress has confirmed this interpretation by expressly prohibiting “gender identity” discrimination in several other statutes, Sessions said, listing it in addition to—rather than within—prohibitions on discrimination based on “sex” and “gender.”

“Accordingly, 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,” Sessions wrote. “This is a conclusion of law, not policy.”

This position will be adopted by the DOJ in all pending and future matters as of the Oct. 4, 2017, date of the memorandum, Sessions stated, with the exception of jurisdictions where “controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review.”

Other laws—the Violence Against Women Reauthorization Act and the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act—ban gender identity discrimination along with other types of discrimination in certain contexts, Sessions explained. “The Department of Justice has vigorously enforced such laws, and will continue to do so, on behalf of all Americans, including transgender Americans.”

To read the Attorney General’s memo, click here.