Bucking a string of court rulings and the views of a separate U.S. agency, U.S. Attorney General Jeff Sessions on Thursday reversed the Justice Department’s support for the legal view trans workers are eligible for non-discrimination protections under current civil rights law.
In a two-page memo dated Oct. 4, Sessions informed Justice Department attorneys the U.S. government will no longer view the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 to apply to discrimination on the basis of transgender status.
“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.”
The memo is consistent with the Justice Department’s view under the Trump administration Title VII affords no non-discrimination protections to lesbian, gay and bisexual workers. Just last week, a Justice Department attorney argued before the U.S. Second Circuit Court of Appeals the law doesn’t apply to an employment discrimination case filed by Donald Zarda, a deceased gay skydiver, because Congress didn’t intend Title VII to cover sexual orientation.
Session’s view reverses the position former U.S. Attorney General Eric Holder staked out under the Obama administration in a 2014 memo affirming Title VII covers “encompasses discrimination based on gender identity, including transgender status.”
Devin O’Malley, a Justice Department spokesperson said the Obama administration was at fault for finding transgender protections under Title VII in the first place.
“The Department of Justice cannot expand the law beyond what Congress has provided,” O’Malley said. “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.”
The position ignores multiple circuit court rulings affirming transgender people are eligible for protections under Title VII. Four federal appellate courts — the First, Sixth, Ninth and Eleventh circuit courts of appeals — have determined employment discrimination against transgender people is barred under the law.
Further, Sessions’ position conflicts with the position of the U.S. Equal Employment Opportunity Commission, which determined in its 2012 ruling in Macy v. Holder under the Obama administration that Title VII covers transgender discrimination.
Christine Nazer, an EEOC spokesperson, said the agency has received the Sessions memo and is “reviewing it,” but declined to comment further.
Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement the Trump administration is “determined to promote discrimination through a false view of the law that has been rejected again and again by the courts.”
“The attorney general does not get to make law, but he should at least read it,” Keisling said. “Simply: He is once again abdicating his responsibilities to enforce the law. Courts have repeatedly ruled that transgender people are protected by sex discrimination laws in employment, education, housing and healthcare. We’ll see him in court.”
Transgender people have a high incident rate of employment discrimination. In the 2015 U.S. Transgender Survey, one in six respondents reported losing a job because of being transgender. Among Black respondents, the rate is higher: One-quarter reported losing a job because they’re being transgender.
James Esseks, director of the American Civil Liberties Union LGBT & HIV Project, said in a statement the memo “marks another low point” for the Justice Department in its abdication of responsibility to LGBT Americans.
“Discrimination against transgender people is sex discrimination, just as DOJ recognized years ago,” Esseks said. “We are confident that the courts will continue to agree and will reject the politically driven decision by Attorney General Sessions.”
Joel Kasnetz, a spokesperson for the Democratic National Committee, also condemned the move as an attack on LGBT people.
“By reinterpreting our employment laws to try to stop protecting transgender people from discrimination, Donald Trump, Mike Pence, and Jeff Sessions have revealed their real goal – turn the clock back to a time when life was even more difficult for LGBTQ people, transgender individuals in particular,” Kasnetz said.