re: Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (USA)

In a memo dated October 4, 2017, Attorney General Jeff Sessions rescinded the Obama administration’s guidance instructing courts to interpret “sex” to include “gender identity” under Title VII of the Civil Rights Act of 1964, the federal law that prohibits workplace discrimination on the basis of sex.

Sessions states that although Title VII prohibits discrimination “because of … sex,” the statute “does not refer to gender identity,” and that “‘[s]ex’ is ordinarily defined to mean biologically male or female.”  He further states that although the U.S. Supreme Court held that Title VII prohibits discrimination based “sex stereotypes” (Price Waterhouse v. Hopkins), the U.S. Department of Justice (“DOJ”) now holds the “position in all pending and future matters” that “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.”

The memo concludes, “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.”

This disappointing, but unsurprising, move follows an amicus brief from the DOJ in the U.S. Court of Appeals for the Second Circuit in a private dispute stating, “Title VII does not reach discrimination based on sexual orientation” (Zarda v. Altitude Express), and opposes the Equal Employment Opportunity Commission’s current interpretation of Title VII, which interprets Title VII’s prohibition on sex discrimination to include discrimination on the basis of gender identity or sexual orientation.

U.S. Justice Department re: Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 — October 4, 2017

U.S. Department of Justice @CivilRights & Title VII (USA) — Gender Identity Watch

In Shift, Justice Dept. Says Law Doesn’t Bar Transgender Discrimination — New York Times

Justice Department ends Obama-era workplace protections for transgender people — The Baltimore Sun