Jeff Sessions Just Invited Employers to Discriminate Against Transgender Workers

The Trump administration‘s terrible record on LGBTQ discrimination just keeps getting longer.

On Wednesday, Attorney General Jeff Sessions reversed a 2014 Department of Justice (DOJ) policy interpreting Title VII of the Civil Rights Act of 1964 to protect transgender workers. Title VII, a major federal law civil rights law that protects workers from employment discrimination, expressly prohibits discrimination “because of… sex”. Session’s new policy argues that Title VII’s prohibition against sex discrimination doesn’t include discrimination based on gender identity, including discrimination against transgender individuals.
Like past legal arguments this DOJ has made against LGBTQ protections, the Sessions memo uses some shady logic to conclude that transgender workers aren’t protected under Title VII. The memo argues that the determination that transgender workers aren’t protected is a “conclusion of law, not policy,” ignoring the fact that courts have again and again have rejected this legal conclusion. The memo argues  that  “‘sex’ is ordinarily defined to mean biologically male or female,” citing the only two federal court cases that have come to that conclusion – conveniently failing to mention the 26+ federal cases that have found that gender identity discrimination is sex discrimination.
Sessions’ memo also puts the DOJ at odds with the country’s other major civil rights enforcement agency, the Equal Employment Opportunity Commission (EEOC), which concluded in 2012 that Title VII’s prohibition on sex discrimination includes discrimination based on gender identity. That DOJ and the EEOC have opposing positions on the scope of Title VII is particularly concerning because they share responsibility for enforcing Title VII on behalf of state and local public sector workers – the EEOC can investigate alleged Title VII violations by state and local governments, but only the DOJ can file a lawsuit against them. Under Session’s new policy, LGBTQ public sector employees are now left stranded between the agencies’ interpretations.
This new articulation of DOJ’s stance on Title VII could have far reaching consequences. The memo makes a blanket statement that the federal government isn’t going to act to protect any transgender workers from discrimination on the job, specifically directing all DOJ attorneys and United States Attorneys not to apply Title VII protections to transgender workers “in all pending and future matters.”  This extreme position ties the hands of thousands of government lawyers and prevents them from doing their job – enforcing civil rights laws.
This new action by Sessions is just the latest of the Trump Administration’s grotesque attacks on the civil rights of LGBTQ individuals:

  • President Trump has nominated candidates who refuse to commit to Title VII protections for LGBTQ workers to lead the DOJ Civil Rights Division and the EEOC;
  • The Department of Education rescinded a guidance extending Title IX protections for transgender students;
  • Sessions abandoned DOJ’s lawsuit against North Carolina alleging that HB2, the state’s law limiting transgender individuals’ access to bathrooms, violated Title VII and Title IX;
  • The Administration banned transgender individuals from serving in the military;
  • DOJ filed a brief in a pending federal case arguing that sexual orientation discrimination isn’t sex discrimination prohibited by Title VII – a position directly opposed to that of the EEOC in the same case. (We filed an amicus brief siding with the EEOC).
  • DOJ filed a brief with the Supreme Court supporting a wedding cake shop that refused to serve a same-sex couple;
  • And Sessions just today released guidelines which will permit employers to use religious or moral beliefs to justify discrimination against women, LGBTQ people, and others.

It’s clear that this Administration it is committed to harming LGBTQ people. So as his DOJ continues its attacks on LGBTQ civil rights, I’ll be sitting over here asking this of Jeff Sessions: